U.S. Justices Scrutinize Power of the Precedent ; Securities Fraud Decision of 1988 Is Latest Case to Face Potential Overrule

Article excerpt

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 asked.

"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 organizing.

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. …


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