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Clarence Thomas says Supreme Court shouldn’t follow ‘erroneous precedent,’ possibly upending Roe

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WASHINGTON, D.C., June 18, 2019 (LifeSiteNews) – During a concurring opinion released Monday, U.S. Supreme Court Justice Clarence Thomas took aim at the contemporary understanding of the legal doctrine stare decisis, which is also the chief theory sustaining Roe v. Wade.

Gamble v. United States concerned the topic of double jeopardy (the bar against trying someone twice for the same crime), not abortion. But Thomas’ concurring opinion took the opportunity to discuss stare decisis (the concept that the longer a ruling stands, the greater weight it accrues as legal precedent).

“In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law,” Thomas wrote. The modern understanding of stare decisis, he argued, exacerbates judges’ temptation to substitute their personal desires for the law “by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”

He explained that the Supreme Court currently decides whether to overturn precedent based on several factors, most of which assume that going against precedent needs a “special reason over and above the belief that a prior case was wrongly decided.” This, Thomas argued, flies in the face of the judiciary’s duty under the U.S. Constitution, which is to apply a “limited body of written laws articulating [specific] legal principles.”

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas declared. “This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law—including our own precedents. That the Constitution outranks other sources of law is inherent in its nature.”

READ: Justice Clarence Thomas rips Planned Parenthood, abortion movement as racist

Supporters and opponents of abortion both took the opinion as a thinly-veiled swipe at Roe, which defenders say should be upheld because it’s stood for 46 years and been reaffirmed repeatedly, despite the fact that numerous pro-abortion scholars admit its original legal reasoning was deeply flawed.

“I very much support Justice Thomas’ view of stare decisis and the need to dispense with rulings that have manufactured ‘rights’ that the Constitution never established, including abortion,” Operation Rescue president Troy Newman declared.

“One can't ignore the timing of Justice Thomas's concurring opinion which comes at a moment when we are seeing a coordinated and relentless attack on Roe v. Wade across the country,” Kristen Clarke, head of the Lawyers’ Committee for Civil Rights Under Law, told Fox News. “The laws that have been adopted in several states violate the Court's settled precedent in Roe. In his concurring opinion, Justice Thomas has made clear his willingness to reject precedents that he personally deems incorrect, a position that unnecessarily politicizes the Court.”

Thomas is the only confirmed anti-Roe vote on the current court, having already declared so in Planned Parenthood v. Casey (though most pro-lifers are confident that Justice Samuel Alito, at least, would vote against Roe as well). The double jeopardy case didn’t give much in the way of new hints as to how President Donald Trump’s additions to the court might vote on Roe. Justice Brett Kavanaugh, who expressed significant deference to precedent during his confirmation hearings, voted with Thomas in the majority but didn’t write his own opinion or join Thomas’s concurring opinion.

Justice Neil Gorsuch differed with Thomas on Gamble’s specific legal question, but his dissenting opinion acknowledged that the “persuasive force of [certain past] opinions is diminished by their dubious reasoning,” which may assuage concerns over his own past statements regarding stare decisis.

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