" As the Supreme Court is about to revisit some major decisions, one of the nine justices - and a key member of the conservative majority - has offered his view that there’s nothing sacred about precedent.
'At some point we need to think about what we're doing with stare decisis,' Justice Clarence Thomas said about the legal term that protects stability in the law. 'And it's not some sort of talismanic deal where you can just say 'stare decisis' and not think, turn off the brain.'
Thomas offered that view in a rare public appearance at Catholic University's Columbus School of Law on Sept. 25.
He was asked about the factors he considers when deciding whether a past decision was wrong and did not address any pending cases.
In the term that begins next month, the court will revisit a nearly century-old ruling protecting the heads of independent agencies that President Donald Trump has repeatedly challenged as he’s sought greater control over the government.
The high court has been chipping away at its 1935 decision in Humphrey’s Executor v. United States, which upheld the constitutionality of preventing members of the Federal Trade Commission from being fired without cause.
When the majority said Trump could fire for now the last Democratic member of the FTC, Justice Elean Kagan wrote in her dissent that her colleagues are 'raring' to overturn Humphrey’s Executor.
That’s not the only precedent the court could upend.
The administration has asked the court to uphold Trump’s changes to birthright citizenship, threatening a 127-year-old Supreme Court ruling."
One cannot help but wonder how "justice" Thomas feels about stare decisis re: Loving v. Virginia
@LevZadov one doesn't have to wonder very far.
Loving v. Virginia would pass tests that Thomas has espoused, from its lack of controversy through basis in text and tradition.
That's in stark contrast to Humphrey’s Executor, as the excerpt above shows.
That Humphrey's has been chipped away at shows that the "stability in the law" isn't always protected by blind adherence to precedent.
Correct. A century of segregation doesn't count because in modern times that has been relegated to the dust heap of history.
That's how constitutional interpretation works.
If there is general consensus today, then there is a lack of controversy today, and that counts for a whole lot in the way these questions are addressed.
This is nothing new, this has been the norm for a long time.
Sad but true.
@volkris
"Lack of controversy"!?! Oh, please. A century of segregation doesn't count? And still to this day fringe influencers and their myriad followers beg to disagree.