In recent cases, the Supreme Court has been asked to overrule
important precedents and will soon review a case on a 1988
securities fraud decision.
Here is a good way to get a belly laugh from Justice Clarence
Thomas: Suggest to him that the Supreme Court's decisions should
seldom be overruled.
"You are the justice who is most willing to re-examine the
court's precedents," Judge Diane S. Sykes told him in November, in a
public conversation at an annual dinner sponsored by the Federalist
Society, the conservative legal group.
Justice Thomas responded with a deadpan statement that the
audience could tell was a joke. "That's because of my affinity for
stare decisis," he said, using the Latin term for "to stand by
things decided." Then he let out a guffaw.
"Stare decisis doesn't hold much force for you?" Judge Sykes
"Oh, it sure does," Justice Thomas responded. "But not enough to
keep me from going to the Constitution."
He was still laughing. The audience gave him a standing ovation.
Justice Antonin Scalia was present, and he could not have been
surprised. "He does not believe in stare decisis, period," Justice
Scalia once told one of Justice Thomas's biographers.
The current Supreme Court term has been a master class in stare
decisis. In cases argued in the last few months, the justices have
been asked to overturn or modify important precedents concerning
campaign finance, abortion protests, legislative prayer and union
And on March 5, the court will consider a request to overrule a
1988 securities fraud decision. If the court does so, it will do
away with most class actions for securities fraud.
As is his custom, Justice Thomas has not participated in the
arguments this term. Indeed, Saturday was the eighth anniversary of
the last time he asked a question from the bench.
Jeffrey Toobin of The New Yorker recently called Justice Thomas's
silence "downright embarrassing." But the real work of the Supreme
Court is done in written opinions, and there Justice Thomas has laid
out a consistent and closely argued judicial vision.
Consider his most recent statement on stare decisis. It came in
his majority opinion in June in Alleyne v. United States, which
overruled a 2002 decision on the jury's role in criminal sentencing.
Overturning the earlier decision was permissible, Justice Thomas
said, because the power of precedent is "at its nadir in cases
concerning procedural rules that implicate fundamental
constitutional protections. …