Eric Segall provides an important defense of stare decisis, even in the face of “obviously wrong” decisions, at least in the opinion of Justice Thomas, on Dorf on Law:
Even if one were to agree in the first instance with Thomas on some or all of his unique views, a thoughtful person would then ask how much chaos and confusion would occur with the overruling of many of the Court’s most impactful cases. But not Justice Clarence Thomas. Chaos and confusion be damned; the only important question is whether the old cases were obviously incorrect based on the Constitution’s text. So far as I am aware, no other Justice in history holds such a view of stare decsis, and for good reason, The rule of law requires some degree of stability and predictability so that people can order their affairs with a reasonable reliance on judicial decisions, especially the most important ones. To suggest that the Justices should not take those factors into account when considering whether to overturn prior cases is the height of judicial arrogance.
And it’s a very good point. While someone like myself sees the justice system as the abstract framework of laws that bring order, peace, and prosperity to society, and thus decisions at variance with that framework should be reverted because of the perceived failure to contribute to that prosperity, the fact of the matter is that there are real world consequences to those reversions.
I hope – I don’t know – that a discussion of any particular reversion will include a comparison of the consequences of reverting a decision and the consequences of not reverting, although I have to wonder if the Justices have the resources to do so. I also wonder if such a procedure was followed in disastrously unjust verdicts such as Dred Scott v. Sandford.
But it seems Thomas has little regard for the practical consequences of his decisions.
Actually it is more than that, but you don’t have to take my word for it. When the late Antonin Scalia was once asked to compare himself to Justice Thomas when it came to fitting originalism into the Court’s non-originalist precedents, Scalia said, “look I’m an originalist and a textualist, not a nut.”
I was not aware that Thomas had such an intra-Court reputation, but it certainly explains his persistent presence in the minority in certain classes of decision, doesn’t it?
