Thomas Fires ‘Opening Salvo’ For SCOTUS To Overturn Own Precedents

Talking Points Memo | 6/17/2019 | Josh Kovensky
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In a sneaky Monday concurrence, Justice Clarence Thomas laid the groundwork for the Supreme Court to overturn its own longstanding precedents in what may mark the beginning of efforts to destroy numerous landmark court decisions from the past decades.

The concurring opinion came in Gamble v. United States, a case regarding double jeopardy that Thomas used as a springboard to argue that the Supreme Court should review — and overturn — settled law where it is found to be “demonstrably erroneous.”

Law - Scholars - TPM - Thomas - Concurrence

Constitutional law scholars told TPM that Thomas appeared to use the concurrence to signal to his fellow justices — and the wider public — that the new conservative majority is interested in overturning years of settled law.

“People can legitimately fear that this opinion provides a kind of intellectual cover and justification for the over-rulings that this new conservative majority may be about to engage in,” Samuel Bagenstos, a University of Michigan law professor and former Obama Administration Justice Department official, told TPM.

Melissa - Murray - Professor - NYU - Law

Melissa Murray, a professor at NYU Law, described it as an “opening salvo for those on the court…to take a more permissive view of stare decisis that is not nearly as deferential as what we’ve seen.”

Stare decisis is the principle that courts look to past precedent when deciding how to apply the law.

Future - Murray - TPM - Question - Future

“He’s playing to the future,” Murray told TPM. “The only question is, is the future in a few weeks, or a few years.”

The Gamble case saw an Alabama man argue that the longstanding judicial precedent of dual-sovereignty — which holds that a crime can be prosecuted at both the federal and state levels without violating the right against double jeopardy — should be thrown out. Thomas had previously suggested that he would be open to overturning the precedent, but shot that down in the first lines of his...
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