Justice Thomas Lays Out an Originalist’s Perspective on Stare Decisis

Today the Supreme Court announced its decision in Gamble v. United States, in which it declined to overturn its longstanding view that the Double Jeopardy Clause does not prevent an individual from being prosecuted by both the state and the federal government—under each jurisdiction’s respective criminal laws—regardless of whether the state and federal offenses stem from the same conduct. In its decision, the Court found “the historical evidence assembled by” the defendant to be “feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent.”

Justice Clarence Thomas joined the Court’s decision and wrote a concurrence so he could separately address “the proper role of the doctrine of stare decisis.” He spelled out as explicitly as he has in his nearly 28 years of service why the current Court is wrong to “view[] stare decisis as a ‘principle of policy’ that balances several factors to decide whether the scales tip in favor of overruling precedent,” requiring (in the words of Planned Parenthood v. Casey (1992)) “a ‘special reason over and above the belief that a prior case was wrongly decided’ to overrule a precedent.” That approach “might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different.”

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