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June 21, 2019; New York Magazine

Precedent is not a simple concept. Yet it may be the one legal doctrine that will determine whether much of what we now know as law will remain as law. And what is clear from the decisions being made by the US Supreme Court this term is that one justice who would like to see precedent be a thing of the past is Justice Clarence Thomas.

First, it is important to understand the concept of precedent. Stare decisis is the legal term used when referring to the use of previously determined law and cases to the greatest extent possible, with justice and reason. When interviewing nominees for judicial seats, whether for the Supreme Court or for the federal district or circuit courts, questions are often asked if they believe that certain cases (such as Brown v. Board of Education) are “settled law.” The question being asked is whether the nominee believes these cases will serve as precedent.

Last week saw more movement in Supreme Court decisions and in the opinions issued that shakes the core of precedent as an anchor for decision-making by the Court. This is hardly the first time that the Court has disregarded precedent. Last year, in its Janus decision, which banned mandatory union dues in the public sector after many decades of the practice being authorized by the Court, Justice Samuel Alito not-so-helpfully suggested that, “An important factor in determining whether a precedent should be overruled is the quality of its reasoning”—basically an open invitation to overrule any precedent if five Justices so decide. This week, it was Thomas, who was clearest in staking out a position for not following precedent in two cases.

The first was a somewhat complicated case of eminent domain. In a 5–4 decision in Knick v. Township of Scott, the Court overruled a 35-year-old precedent and said local governments must pay in advance when they take property or face immediate federal lawsuits. The concern of the dissenting justices, in the words of Justice Elena Kagan, was “which cases the Court will overrule next.” She further wrote that this ruling will “channel a mass of quintessentially local cases involving complex state law issues into federal courts and harm local governments.”

Much of what Justice Kagan wrote mirrored that of Justice Stephen Breyer when he wrote his dissent around the loss of precedent in the Hyatt case, another 5-to-4 decision made a few weeks earlier.

What is troubling about these cases is the slim margin on the decisions. Thomas wrote a strong opinion in a 7–2 win in the case of Gamble v. United States. This was a case that looked at the issue of double jeopardy and whether a person could be tried at the state level and again at the federal level. Thomas, in this case, also saw an opportunity to do away with precedent. In writing his opinion, it was clear to many that he was laying groundwork for doing away with other precedents.

Thomas concluded: “In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent….A demonstrably incorrect judicial decision…is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.”

Slate legal analyst Mark Stern wrote, “[Thomas’] repudiation of stare decisis isn’t really about Gamble. It’s aimed at a clear set of precedents—those enshrining a constitutional right to abortion access and same-sex marriage.”

But many of the decisions are not 7 to 2 for this Court. They are the narrowest they can be. The question is, are we to do away with precedent on a margin of 5 to 4? Does the balance of our legal decisions now rest in the hands of the appointments made on what is becoming a more and more politicized federal judiciary? And what will this mean for our courts and judicial systems?

When making the decision to overturn the longstanding 1896 precedent of Plessy v. Ferguson—“separate but equal”—in 1954 with the Brown v. Board of Education decision, it was considered important to do so with unanimity. This was a means of demonstrating the importance of the Brown decision. Rolling back that precedent had great meaning at that moment. It should have great meaning today. It should not be taken lightly. Decisions by the Supreme Court should stabilize the law and create a sense of fairness and trust in the courts. Without that, many rights taken to be established constitutional law could be in great jeopardy.—Carole Levine