New York Times
February 25, 2014
by Adam Liptak
WASHINGTON — Here is a good way to get a belly laugh from Justice Clarence Thomas: Suggest to him that the Supreme Court’s decisions should seldom be overruled.
“You are the justice who is most willing to re-examine the court’s precedents,” Judge Diane S. Sykes told him in November, in a public conversation at an annual dinner sponsored by the Federalist Society, the conservative legal group.
Justice Thomas responded with a deadpan statement that the audience could tell was a joke. “That’s because of my affinity for stare decisis,” he said, using the Latin term for “to stand by things decided.” Then he let out a guffaw.
“Stare decisis doesn’t hold much force for you?” Judge Sykes asked.
“Oh, it sure does,” Justice Thomas responded. “But not enough to keep me from going to the Constitution.”
He was still laughing. The audience gave him a standing ovation.
Justice Antonin Scalia was present, and he could not have been surprised. “He does not believe in stare decisis, period,” Justice Scalia once told one of Justice Thomas’s biographers.
The current Supreme Court term has been a master class in stare decisis. In cases argued in the last few months, the justices have been asked to overturn or modify important precedents concerning campaign finance, abortion protests, legislative prayer and union organizing.
And on March 5, the court will consider a request to overrule a 1988 securities-fraud decision. If the court does so, it will do away with most class actions for securities fraud.
As is his custom, Justice Thomas has not participated in the arguments this term. Indeed, Saturday was the eighth anniversary ofthe last time he asked a question from the bench. (He did crack a joke last year.)
Jeffrey Toobin of The New Yorker recently called Justice Thomas’s silence “downright embarrassing.” But the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued vision.
Consider his most recent statement on stare decisis. It came in his majority opinion in June in Alleyne v. United States, which overruled a 2002 decision on the jury’s role in criminal sentencing.
Overturning the earlier decision was permissible, Justice Thomas said, because the power of precedent is “at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections.” He added that the 2002 ruling was at odds with “the original meaning of the Sixth Amendment.”
In dissent, Justice Samuel A. Alito Jr. wrote that “the court’s decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies.”
The case to be argued next week, Halliburton v. Erica P. John Fund, No. 13-317, adds an important wrinkle to the usual analysis of whether a precedent deserves to survive. That is because the decision interpreted a federal law, the Securities Exchange Act, rather than the Constitution.
In constitutional cases, the Supreme Court has the last word. If it is wrong, nothing short of a constitutional amendment can change things. That suggests, as Justice Thomas told Judge Sykes, that the court should be open to addressing its errors.\
Cases in which the court interprets statutes are different. In them, Congress has the last word. If lawmakers disagree with the court’s interpretation of a law, all they need to do is say so in a new law. If Congress fails to act, it may be said to agree with the court’s decision.
Letting lawmakers have the last word “arises from the respect owed to the legislative branch and the reality that Congress is often better suited to evaluate whether an existing statutory rule or interpretation should be abandoned in light of changed circumstances of policy judgments,” Charles Fried, who served as United States solicitor general in the Reagan administration, wrote in a supporting brief urging the justices to leave the 1988 precedent alone.
Justice Thomas seems to agree. In a 1994 concurrence, he wrote that “considerations of stare decisis have ‘special force’ in the area of statutory interpretation.”
According to the plaintiffs in the new case, the Supreme Court has not overruled a statutory precedent in an area in which Congress has been active since 1961, in a tax case. But lawyers for the defendantssaid the 1988 decision was entitled to “lessened precedential weight” because it was “largely a procedural and evidentiary construct.”
The decision, Basic v. Levinson, said investors claiming they were defrauded by false statements in securities filings need not show they relied on the statements. Instead, it said, they could rely on a presumption that all important publicly available information about a company is reflected in its stock price.
The presumption in Basic is known as the “fraud on the market” theory. Without it, it would be impossible to pursue most securities-fraud class actions.
Last year, four justices, including Justice Thomas, seemed to invite a challenge to the 1988 decision. “Recent evidence suggests that the presumption may rest on a faulty economic premise,” Justice Alito wrote in a concurrence in Amgen v. Connecticut Retirement Plans and Trust Funds. “In light of this development, reconsideration of the Basic presumption may be appropriate.”
Justice Thomas agreed that the Basic decision “is questionable.” Since he will almost certainly ask no questions at the argument next week, we will have to wait until the court decides the case, probably in June, to see how just how weak his “affinity for stare decisis” is.