Luke Gilman

Continuous Project, Altered Occasionally

Considering Justice Thomas on Precedent

For the law geeks among us, U.S. Supreme Court Justice Clarence Thomas recently gave an extended interview Judge Diane Sykes of the 7th Circuit U.S. Court of Appeals, that is worth a listen.

I realize there will be those whose perception of Justice Thomas will never escape the lens of his confirmation hearings and an oversimplified conflagration of originalism, conservatism and race politics. Putting such things aside, if you can, I think will reveal, sooner or later, a deeply interesting Justice, who has to some degree, sidestepped the ideological zeitgeist to a much greater degree than the popular caricature of the man would suggest. Prof. Akhil Reed Amar has suggested a similarity between Thomas and Hugo Black as Justices whom history has appraised better than did their contemporaries; I might also include the elder Justice Harlan in such a comparison. Consider this exchange:

Judge Sykes: I think it is fair to say that you are the Justice who is most willing to reexamine the Court’s precedents.
Justice Thomas: That’s because of my affinity for stare decisis.
Judge Sykes: That’s what I was going to ask you about, stare decisis doesn’t hold much weight with you?
Justice Thomas: Oh it sure does. But not enough to keep me from going to the Constitution.
Judge Sykes: I did want to ask you about your approach to writing separately. You do write separately quite a bit.
Justice Thomas: Oh, I do?
Judge Sykes: Yes, you do and you really forge your own path in those separate opinions. Just this past term, for example, one of your separate opinions on the application of the Sixth Amendment to the jury trial right … became the majority view of the court, but others of your separate opinions may be less likely to command a majority view any time soon.
Justice Thomas: Maybe like a fine wine, it just needs aging.
Judge Sykes: Is that your philosophy of separate opinion writing?
Justice Thomas: Hey, Harlan it took him 60 years and he eventually won Plessy. You know, you ask a very good question. I think that I may lose, but I think I’m obligated and in fact encouraged by my colleagues – if you believe that, write it. I try not to do it in a way that’s not polite or respectful, but I think that someone should have kept writing that segregation was wrong, and regardless of what the precedent was, then, I think you have to say certain things.

Originalism, in our modern conception, is a judicial proxy
for political conservatism, and there is much in Thomas’ jurisprudence to support that presumption, but isn’t it equally plausible – and how have I not seen it before – that a descendant of slaves, raised in Georgia in the 50’s and 60’s would have little deference for a

I had never connected Thomas’ Consider then, the Supreme Court Justice, for whom cases are, as Thomas described them in another interview, the caboose of the legal train, the last decision in the line.

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