Perhaps you heard the statement this week by Justice Clarence Thomas:
"At some point we need to think about what we're doing with stare decisis. And it's not some sort of talismanic deal where you can just say 'stare decisis' and not think, turn off the brain, right? We never go to the front (to) see who's driving the train, where is it going. And you could go up there in the engine room, find it's an orangutan driving the train, but you want to follow that just because it's a train.
I don't think that I have the gospel, that any of these cases that have been decided are the gospel, and I do give perspective to the precedent. But it should — the precedent should be respectful of our legal tradition, and our country, and our laws, and be based on something, not just something somebody dreamt up and others went along with."
The implications of this statement are staggering. As I read it, the statement allows for the current Supreme Court to reconsider any prior decision based on their current analysis of the case. I am not sure which prior Justice is the orangutan in this analogy, having misinterpreted the constitution in their precedent-setting decision.
However, following Justice Thomas’s logic, it allows any future Supreme Court to reconsider any decisions made by this Court. You may agree or disagree with the decisions made by this Court, but the concept that decisions that were made 100 years ago, and were the bases of dozens of future decisions could be thrown out because of the current thinking of five justices sitting on the present-day Supreme Court would naturally lead to the rewriting of the interpretation of the Constitution cyclically, mirroring changes in the makeup of the Supreme Court. And this would lead to such uncertainty, that lower courts would effectively cease to be able to decide cases and companies and individuals will never be certain of whether their acts were still legal, or still prohibited.
There are certainly examples of individual, notorious decisions that have been reversed; but the scale of reexamination implied by Justice Thomas is unparalleled and suggests that any Supreme Court, left-leaning or right-leaning, should have the capacity to restructure any previous interpretations of the Constitution.
The Federalist Society among others, has argued that the decision in Marbury v Madison, the case that established the Supreme Court as the arbiter of whether Congressional Legislation was constitutional, was wrong, and should not be held as precedent.
Along with the Dobb’s decision, the Court has already reversed the 40-year-old precedent requiring courts to defer to an independent agency’s reasonable interpretation of an ambiguous law.
The Court is now reconsidering the 100-year-old precedents on Birthright Citizenship.
The current Supreme Court is considering overturning the 90-year-old precedent that the President does not have the right to fire the leaders of independent agencies.
Justice Thomas has already suggested that the Court reconsider “due process” precedents including the 60-year-old decision establishing the right to contraception, the 20-year-old precedent affirming the right to same-sex intimacy, and the 10-year-old precedent legalizing same-sex marriage.
Now, it is not my position to agree with or disagree with these positions. You may think that those precedents were decided properly or improperly. The issue here is whether historically accepted precedents should be subject to the judicial philosophy of a simple majority of individuals currently serving on the Supreme Court, and whether any actions taken on precedents might then be reversed and reversed again when the orientation of future Supreme Courts change.