Supreme Court Justice Clarence Thomas on Thursday urged his colleagues on the high court to consider overturning prior decisions despite precedent, something pro-life advocates are considering to be a reference to overturning Roe v. Wade, which gave women the legal right to obtain an abortion. Thomas made his case in a concurring opinion in Gamble v. United States, a case dealing with double jeopardy.
"When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it," Thomas wrote, noting that lower federal courts should also disregard poor precedents. Thomas went on to add that precedent "may remain relevant when it is not demonstrably erroneous."
Pro-life and pro-choice advocates are preparing for a fight.
Kristen Clarke, the President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law, told Fox News Thomas' stance on overturning precedent is a clear attack on abortion rights.
"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. 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," Clark said. "Justice Thomas's view is fundamentally at odds with the way in which the Supreme Court has generally operated. It is a view that threatens to further undermine the integrity of the Court and weaken the stability of the institution."
Some legal scholars, however, are worried about the Supreme Court's potential to reevaluate previous decisions.
“Thomas says legal questions have objectively correct answers, and judges should find them regardless of whether their colleagues or predecessors found different answers,” Jonathan Entin, a law professor at Case Western Reserve University, told Reuters. “Everyone is concerned about this because they’re thinking about Roe v. Wade.”
“People can legitimately fear that this opinion provides a kind of intellectual cover and justification for the over-rulings that this new conservative majority may be about to engage in,” Samuel Bagenstos, a University of Michigan law professor and former Obama Administration Justice Department official, told Talking Points Memo.
University of Texas Law professor Steve Vladeck argued that the Supreme Court overturning previous precedent would make the court more political.
"Stare decisis," the idea that judges generally follow even those precedents with which they disagree, is central to judicial legitimacy because it's the core way in which judges are not just "politicians in robes." That's why today's Justice Thomas opinion today is so troubling. https://t.co/oRRbXIgVFM— Steve Vladeck (@steve_vladeck) June 17, 2019
There's no question that stare decisis will always be subjective. But Thomas's alternative, that judges should overrule any decision that _they_ find "demonstrably erroneous," would render precedent largely irrelevant—and the line between judges and politicians all-but illusory.— Steve Vladeck (@steve_vladeck) June 17, 2019
Some conservative legal commentators have attacked progressives in recent weeks for raising alarm bells about #SCOTUS's "legitimacy" in light of this Term's key cases. But watering down stare decisis is a much bigger threat to the Court's long-term legitimacy than any one ruling.— Steve Vladeck (@steve_vladeck) June 17, 2019
Supreme Court lawyer and former Acting Solicitor General of United States, Neal Katyal, shared similar sentiments:
Justice Thomas is essentially laying the intellectual groundwork for a massive revisiting of settled precedents. This can prove to be very, very dangerous. https://t.co/BhrBjdClRg— Neal Katyal (@neal_katyal) June 17, 2019