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07/28/2019

John McGinnis on Justice Thomas and Precedent
Michael Ramsey

At Law and Liberty, John McGinnis:  Why Justice Thomas Is Wrong about Precedent.  From the introduction:

This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v. United States, the case on the scope of double jeopardy. There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous.” Thomas recognizes that judges in England at the time of the Constitution applied a more robust doctrine of stare decisis, but rejects the notion that federal judges have the authority to follow a similar doctrine today in statutory and constitutional cases. For Thomas, the difference is that English common law was judge-made, but “we operate in system of written law in which courts need not—and generally cannot—articulate the law in the first instance.”

The problem with Thomas’ historical argument is that judges in England also interpreted written law in the form of statutes. And parliamentary supremacy debarred them from “articulating the law in the first instance” in that context as well. Nevertheless, English courts regularly applied stare decisis to matters of interpreting the written law of statutes. Thus, it is not true that the change to written law put the traditional use of stare decisis outside the scope of judicial power that judges possess according to Article III. ...