Monday, October 8, 2007

Thomas on Precedent

Jan Crawford Greenburg had seven hours of interviews with Justice Thomas, and not all of that got aired on ABC. So she's writing a series of blog posts that delve into the unaired portions of the interviews.

Yesterday, she had a post called Being a Justice. Worth checking out. And today, she has a post called "Thomas on Precedent. Here's an excerpt; read the whole thing:
Let’s start first with Scalia. I think we can all agree (as Harry Blackmun’s papers make clear) Thomas doesn’t “follow” anyone—as some of my colleagues in the press have been pointing out for years, Tony Mauro being among the first.

Thomas, to be sure, admires Scalia. In his book, Thomas says he told the Bush White House “Scalia,” when lawyers asked him, as a prospective nominee, the standard question: “Which Justice do you most admire?” (Sam Alito, when asked that question, said “Rehnquist.”) Thomas told me he’d been impressed by Scalia’s opinion in Morrison v. Olson, which the Court had decided when he at EEOC. It had divided the Court 7-1, and Scalia’s dissent is a classic exposition on separation of powers.

“In the Olson case, he had been the lone voice that the independent counsel law actually violated the whole notion of separation of powers, and it turns out now—when the interest changed—that people agree with him. But I just thought it was fascinating,” Thomas said. “He was not going along with something simply because, at that time, it was fairly popular. He was going back to that document, going back to the history and the tradition of that document, and then explaining it in a very rational and well-written way.”

But Thomas parts ways with Scalia on significant issues—especially, as most of you know, on the issue of stare decisis, which is Latin for “let the decision stand.” That principle maintains stability in the law and acts as a restraint on judges. All justices say they believe in stare decisis—and they testify to that effect in their confirmation hearings--but all of them also are willing to set it aside when they think the Court got it wrong in the past.

Thomas and Scalia, for example, have voted to overturn Roe v. Wade because they don’t think a right to an abortion is in the Constitution. This past term, they also would have overturned other decisions, including a recent one that had upheld the landmark McCain-Feingold campaign finance reform law. But other conservatives—John Roberts and Sam Alito--instead took a more cautious approach and held the Court back.

Liberal justices walk away from the principle, too. In recent years they overturned cases, for example, that had allowed the death penalty for the mentally retarded and for juveniles. They also overturned a 1986 decision that allowed states to prosecute homosexuals for private, consensual sex. And they have indicated that some of the Court’s recent decisions will not have staying power—that they will overturn those cases the moment the Court’s membership changes.

But of all the justices, Thomas is the one most willing to rethink old cases. In Ken Foskett’s insightful book, Judging Thomas, Scalia said Thomas “doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, ‘let’s get it right.’"

Thomas says Scalia’s claim is an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution.

But there’s no question, he says, he’s much more willing to go back to the precedent and reexamine it.

“When you get a case, you have the last decision in the line. That’s what’s on your desk,” Thomas says. “The last decision in the line is like a caboose on a train. Let’s go from the caboose all the way up to the engine, and see what really went on, and let’s think it all through.

“You might get up to the caboose and find out: Oh, there’s nobody in the engine,” Thomas continues. “You say, ‘There’s nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let’s think it through.’”

That willingness to “think it through” separates Thomas from Scalia in a number of cases.

“Maybe you can’t change it, but at least let’s make it coherent as to what happened. You can accept the precedent, but you should at least try to see what went on,” he says. “You go back to the document. You go back to the language of the Constitution, to the history, to the tradition. You go through it all, and then you compare that with the precedent.”

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