He favors cutting back the authority of the federal government and letting states “decide for themselves how to safeguard the health and welfare of their citizens.”
He believes that “the Constitution left religion to the states” and that the First Amendment’s prohibition against Congress’s enacting laws on the establishment of religion “was intended to protect” the right of states to do as they please.
He wants to roll back what most Americans consider racial progress because the “Constitution abhors classifications based on race” and even when the government uses them to solve problems and confer benefits, “it demeans us all.”
Extreme as those views are, the most extreme part of Justice Thomas’s record is not what he decides, but how. Justice Antonin Scalia told a biographer of Justice Thomas, Ken Foskett, that Justice Thomas “doesn’t believe in stare decisis, period.”
Even to conservatives like Justice Scalia — an originalist, claiming to interpret the Constitution as the framers understood it — stare decisis, or following legal precedents, is integral to Supreme Court law. In guiding the court, that principle favors gradual over sweeping change. It is indispensable in assuring court rulings that are not whims of politics.
That’s not the Thomas approach. In pushing the court to reconsider what he has called “wrong turns” in the law, he has argued that “the ultimate precedent is the Constitution.” But since the Constitution is not “a catalogue of answers,” as the conservative scholar Alexander Bickel explained in 1962, Justice Thomas’s brand of originalism means substituting his personal views of the Constitution for those of earlier courts.
Of course, overruling precedent is the only way the Supreme Court can correct mistakes, as when Brown v. Board of Education overturned Plessy v. Ferguson in declaring segregation unconstitutional. Plessy and other discredited decisions are reminders that the court’s rulings in one era cannot be shielded from scrutiny in another.
Almost all justices recognize the need to balance respect for earlier rulings with openness to revising the law as norms of society and facts change. To do that, the court must reason its way to answers — and precedents embody that reasoning.
JUSTICE LEWIS POWELL JR., a Nixon appointee to the court, wrote that stare decisis was necessary for maintaining the court’s “legitimacy.” Disregard for precedent, he argued, leads the public to see the court as “composed of unelected judges free to write their policy views into law.”
Since Justice Thomas has been on the bench, his opposing view about precedent has seeped into the broader political debate. Others on the court have also become more willing to override or twist the meaning of precedent in critical areas.
In 2007, for example, the court decided in a 5-to-4 vote that public school systems could no longer take account of a student’s race in trying to achieve integration. The court’s conservative majority turned the meaning of Brown v. Board of Education upside down in barring communities from voluntarily fulfilling Brown’s promise to end segregation. In 2010, in the Citizens United case, the court’s conservatives swept aside decades of established precedents in ruling that government may not restrict corporate and union donations to political campaigns.
This year, in a 5-to-4 vote, in AT&T Mobility v. Concepcion, the conservatives upheld the arbitration clause in a customer contract requiring the signer to waive the right to take part in a class-action suit. In a show of rank activism, the court went far beyond the question it was asked to decide when it suggested that all businesses can shut down class actions by relying on arbitration clauses in consumer contracts.
In each of these cases, Justice Thomas voted with the majority but filed separate opinions because, as he wrote in the Citizens United case, the majority’s “constitutional analysis does not go far enough.” In that case, he said the court should have struck down all donor disclosure requirements in campaign laws.
His idiosyncratic approach has made him a solo dissenter almost twice as often as any other justice on the court. Last term, he dissented when the court struck down on First Amendment grounds a California statute that banned the sale of violent video games to children. He concluded that the court was wrong because the framers “could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors,” yet cited no legal evidence from the nation’s founding.
The scholars Lee Epstein and Andrew Martin found in a recent study that Justice Thomas, while a steadfast conservative vote, has rarely been the swing vote in a major case. But that does not mean he has had no impact. He has spent 20 years advancing a judicial philosophy that rejects restraint in decision making and fidelity to legal precedent. His disregard for essential principles has surely added to public cynicism about how Supreme Court law is made.