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Clarence Thomas Questions Stare Decisis in Rare Public Remarks

He signaled openness to reconsidering past rulings rooted in substantive due process.

Overview

  • Speaking at Catholic University’s Columbus School of Law in Washington, D.C., Thomas said precedent is not “the gospel” and urged reassessing how the Court treats stare decisis, according to ABC News.
  • He compared uncritical reliance on precedent to staying on a train without checking the engine room, joking one might find “an orangutan” driving.
  • His remarks align with his 2022 Dobbs concurrence urging reconsideration of privacy-based decisions, including Obergefell v. Hodges, Griswold v. Connecticut, and related cases.
  • The Supreme Court has not agreed to hear any case that would revisit Obergefell; recent state resolutions are nonbinding and none has passed, and Kim Davis’s petition remains ungranted.
  • If Obergefell were overturned, many states could again restrict the issuance of new licenses, though the Respect for Marriage Act requires federal and interstate recognition of same-sex marriages performed where legal; Justice Amy Coney Barrett has described the right to marry as “fundamental.”