A little-noticed bombshell was dropped by Justice Antonin
Scalia in a recently released biography of Justice Clarence
Thomas. It poses an interesting dilemma for President Bush
this election season, in that it raises the question of whether
he should continue to cite Thomas as one of his model Supreme
The evidence, of course, suggests that a repudiation of Thomas
by the president is extremely unlikely. Indeed, Ken Foskett,
the author of "Judging Thomas: The Life and Times of
Clarence Thomas," claims that top Bush administration
officials have discussed with Thomas the possibility of his
succeeding William Rehnquist as chief justice.
But Scalia's pointed comments to Foskett complicate Bush's
support for Thomas considerably. Specifically, Scalia told
Foskett that Thomas "doesn't believe in stare decisis,
period." Clarifying his remark, Scalia added that "if
a constitutional line of authority is wrong, he would say
let's get it right. I wouldn't do that."
Stare decisis is a fancy Latin term that stands for a bedrock
proposition of U.S. law: that the Supreme Court will uphold
precedent and not disturb settled law without special justification.
As Justice Thurgood Marshall explained for the court in 1986,
stare decisis is the "means by which we ensure that the
law will not merely change erratically, but will develop in
a principled and intelligible fashion."
Four years ago, Rehnquist echoed Marshall in a case that reaffirmed
the Miranda warning given before police interrogations, stating
that stare decisis "carries such persuasive force that
we have always required a departure from precedent to be supported
by some 'special justification.' "
Stare decisis is not and should not be an ironclad rule --
otherwise Plessy v. Ferguson, which upheld segregation,
would still be on the books. But almost everyone agrees that
respect for the doctrine is indispensable for a Supreme Court
justice. As Thomas himself explained at his confirmation hearing,
"stare decisis provides continuity to our system, it
provides predictability, and in our process of case-by-case
decision making, I think it is a very important and critical
It is unlikely that any nominee of any president would be
confirmed to the Supreme Court if he or she admitted to a
disbelief in the doctrine of established case law. Court watchers
know that Scalia's statement about Thomas goes to the heart
of a jurisprudential chasm that separates the court's two
most conservative justices. Scalia is fiercely conservative,
but by and large he judges within the parameters of the rules
laid down by predecessors. Thomas rarely appears to feel so
The proof is in 35 lone Thomas
opinions that express a willingness to reexamine a breathtaking
range of well-settled constitutional law. A little-known but
telling example is a 1998 opinion by Thomas that expresses
a willingness to reexamine the court's opinion in Calder
v. Bull, which decided that the Constitution's prohibition
against retroactive punishments applies only to criminal (not
civil) laws. Regardless of what one thinks of the merits of
the case, it is a unanimous 1798 opinion by the court that
has not been seriously challenged in more than 200 years.
It is the dictionary definition of established case law.
Far better known is Thomas's concurrence in United States
v. Lopez, where, alone among the justices, he expressed
a willingness to reexamine fundamental aspects of the court's
jurisprudence under the Commerce Clause of the Constitution.
This clause -- granting Congress the authority to regulate
commerce "among the several states" -- is the principal
power used by the federal government to protect civil rights,
worker safety and the environment. Thomas's views, if adopted
by the court, would call into question fundamental statutes
in all these areas. As Justice Anthony M. Kennedy noted in
a separate opinion, "the Court as an institution and
the legal system as a whole have an immense stake in the stability
of our Commerce Clause jurisprudence as it has evolved to
this point. Stare decisis operates with great force in counseling
us not to call in question the essential principles now in
place respecting the congressional power to regulate transactions
of a commercial nature."
Reading a Thomas opinion can feel like hitting 100 mph on
a deserted highway: thrilling (or terrifying, depending on
your perspective) but still a bad idea. The excitement of
approaching every constitutional question anew comes at the
cost of a stab to our constitutional tradition. No president
should accept this trade-off.
The writer is executive director of Community Rights Counsel,
a public interest law firm.