At Reason.com, Damon W. Root: "Strictly obeying the original meaning of the Constitution can lead Justice Thomas to liberal results".
On Thomas, Lincoln Caplan and stare decisis:
Writing in The New York Times, Lincoln Caplan topped off a laundry list of Thomas’ alleged judicial sins by pointing out “the most extreme part of Justice Thomas’s record,” his lack of respect for Supreme Court precedent:
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.”
There’s certainly a case to be made for stare decisis, but let’s not pretend Thomas is the only one who disregards precedent when it conflicts with his interpretation of the Constitution. Respect for precedent, after all, would have had the Supreme Court follow its 1986 ruling in Bowers v. Hardwick and uphold Texas’ notorious ban on gay sex in 2003’s Lawrence v. Texas. Or does Caplan think Thomas’ dissenting vote in Lawrence was correct because he followed precedent in that instance?
Posted at 7:00 AM