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The Conservative Justices Are Not Even Bothering to Tell This Lie Anymore - Balls and Strikes
Balls and StrikesTraditionally, when asked in public settings to talk about how they do their jobs, Supreme Court justices have spent a lot of time extolling the virtues of stare decisis—the principle that judges follow precedent when deciding new cases, in order to promote stability in the law across courts and over time. Stare decisis is a foundational part of the American legal system, so Supreme Court justices, who have spent their lives rising to the very top of that system, are expected to treat it with an appropriate amount of reverence.
In particular, the justices are supposed to express staunch disapproval of the notion that the Court would (or should) overturn precedent simply because five members think the prior decision is wrong. In a 1991 opinion, then-Chief Justice William Rehnquist lauded stare decisis for promoting “the evenhanded, predictable, and consistent development of legal principles,” and contributing to the “actual and perceived integrity of the judicial process.” Upholding precedent, he continued, is “usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than it be settled right.”
In comments last month at Catholic University’s Columbus School of Law, Justice Clarence Thomas came very, very close to dropping this charade altogether. “At some point, we need to think about what we’re doing with stare decisis,” he said. “It’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think—turn off the brain, right?” If a result is “totally stupid,” he continued, “you don’t go along with it just because it’s decided.”
Thomas was careful to note that he still gives “perspective” to precedent. But he also said he doesn’t think precedent is “the gospel,” and he analogized judges who overemphasize stare decisis to train passengers who are unaware that if they were to check the engine room, they would “find it’s an orangutan driving.” In Thomas’s view, to be worth upholding, Supreme Court precedent must be “respectful of our legal tradition, and our country, and our laws, and be based on something—not just something somebody dreamt up and others went along with.”
In particular, the justices are supposed to express staunch disapproval of the notion that the Court would (or should) overturn precedent simply because five members think the prior decision is wrong. In a 1991 opinion, then-Chief Justice William Rehnquist lauded stare decisis for promoting “the evenhanded, predictable, and consistent development of legal principles,” and contributing to the “actual and perceived integrity of the judicial process.” Upholding precedent, he continued, is “usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than it be settled right.”
In comments last month at Catholic University’s Columbus School of Law, Justice Clarence Thomas came very, very close to dropping this charade altogether. “At some point, we need to think about what we’re doing with stare decisis,” he said. “It’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think—turn off the brain, right?” If a result is “totally stupid,” he continued, “you don’t go along with it just because it’s decided.”
Thomas was careful to note that he still gives “perspective” to precedent. But he also said he doesn’t think precedent is “the gospel,” and he analogized judges who overemphasize stare decisis to train passengers who are unaware that if they were to check the engine room, they would “find it’s an orangutan driving.” In Thomas’s view, to be worth upholding, Supreme Court precedent must be “respectful of our legal tradition, and our country, and our laws, and be based on something—not just something somebody dreamt up and others went along with.”
The conservative justices who used to extol the virtues of upholding Supreme Court precedent are getting way, way more comfortable talking about how they have the votes to do whatever they want
— Jay Willis (@jaywillis.net) 2025-10-09T17:15:58.810Z
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