Clarence Thomas believes Supreme Court decisions are not set in stone. They are not “gospel.” They can be overturned. So everyone, stop citing precedent or stare decisis when theorizing how today’s Supreme Court, or any Supreme Court will rule, he opined Thursday (https://share.google/MGlGRVrXIh7TxnYGj).
You know he’s right about decisions not being forever gospel. After all, the Dred Scott decision of 1857 denying a black man’s right to be a citizen was invalidated by the North’s Civil War victory followed by passage of constitutional amendments ending slavery, granting birthright citizenship and extending voting rights to black citizens.
Thomas’ no-binding precedent belief even applies to decisions he and his fellow conservatives made just a few years ago. When Joe Biden was president they struck down his actions giving financial relief to millions with college debt. The justices said a president could not unilaterally invalidate a program passed by Congress. Yet, when Donald Trump repeatedly has eviscerated congressional programs the conservative majority has allowed his actions to stand.
So, don’t be too secure that the rights of LGBTQ couples to marry will continue to be nationally recognized, or that couples of different races could continue to legally marry in all 50 states and territories, or that the right to engage in private homosexual activity is guaranteed in the Constitution. Or that the availability of contraception is legally guaranteed.
Scary, huh? You betcha!
But that’s what Thomas and like-minded conservatives believe. Nothing is guaranteed unless specifically stated in the Constitution and its amendments. Even those amendments may be interpreted differently in the present age versus the last century and a half, as we may discover when the conservative majority on the court weighs in on the validity of birthright citizenship that Donald Trump wants to eliminate.
There’s at least one long-shot silver lining to this world Thomas has imagined, if not in actual word, in contemplation, at the very least. Future courts might review the sweeping powers granted to a sitting president by the current Roberts supremes. A more progressive court might restore appropriate checks and balances to our government.
I know, it’s a long shot. It would require an extraordinary president willing to cede back powers Trump has been granted by a pliant Supreme Court majority. Electing such a president will be increasingly difficult given the Electoral College tipping more and more to the right.
But “hope springs eternal,” the saying goes.
