Justice Thomas on Stare Decisis:
Jan Crawford Greenburg has a fascinating post at her Legalities blog summarizing an interview with Justice Thomas about his views on stare decisis. Unsurprisingly, Thomas's views seem quite different from the caricatures often presented by popular commentators:
Thomas says [claims that he does not believe in stare decisis are] an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution.So much for the Constitution in Exile.
But there's no question, he says, he's much more willing to go back to the precedent and reexamine it.
"When you get a case, you have the last decision in the line. That's what's on your desk," Thomas says. "The last decision in the line is like a caboose on a train. Let's go from the caboose all the way up to the engine, and see what really went on, and let's think it all through.
"You might get up to the caboose and find out: Oh, there's nobody in the engine," Thomas continues. "You say, 'There's nobody driving the train. What happened? Where did we go wrong? Maybe we're headed in the wrong direction. Let's think it through.'"
. . . .
Thomas says he believes in stare decisis, especially in the statutory cases. If it's a choice between precedent and what he considers a correct reading of the Constitution, though, he's more willing to go to the Constitution. That's not "radical," he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error. . . ..
That's not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.
In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say "no more."