Clarence Thomas calls for abandoning 'demonstrably erroneous' precedent

Foxnews ^

[Red in Blue PA]

In a concurring opinion in a Supreme Court case announced Monday, Justice Clarence Thomas issued a lengthy call for his colleagues to overturn "demonstrably erroneous decisions" even if they have been upheld for decades -- prompting legal observers to say Thomas was laying the groundwork to overturn the seminal 1973 case Roe v. Wade, which established a constitutional right to abortion.

Thomas' blunt opinion came in a case concerning the so-called "double-jeopardy" doctrine, which generally prohibits an individual from being charged twice for the same crime. But both pro-life and pro-choice advocates quickly noted the implications of his reasoning for a slew of other future cases, including a potential revisiting of Roe.

"When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it," Thomas wrote, noting that lower federal courts should also disregard poor precedents. Thomas went on to add that precedent "may remain relevant when it is not demonstrably erroneous."

[left that other site]

I agree with Justice Thomas. An erroneous decision from the dim past, such as Dred Scott, or Roe v Wade, should not become settled law because they “happened” some time ago.

[Bommer]

It’s the number 1 right being violated of the Decloration of Independence. Life comes before liberty or happiness. SCOTUS sucks!

[montag813]

Fasten your seatbelts, liberals...it's going to be a bumpy term

[csn vinnie]

The sad thing is that a Supreme Court Justice stating the obvious makes big news.

[AlienCrossfirePlayer]

I am hoping that Obergefell v. Hodges (homosexual marriage 2015) is implicated, too.

[Piranha]

That is not what “3/5 of a man” was about. It was about state representation for people who could not vote. The slaveholding states wanted their slaves to be counted in the census for purposes of appointing congressmen. The free states wanted slaves not counted, since they couldn’t vote. The compromise was to count them at 60% (3/5). It was intended to benefit slaves, not to say that they were less than human.

[Piranha]

The Dred Scott case was something else: It permitted slaveholders to bring their slaves into areas (in his case, Illinois and Wisconsin) where state law specified that slaves brought into those areas were automatically deemed free citizens of the US. The Supreme Court said they would continue to be slaves.

[Gay State Conservative]

That is not what "3/5 of a man" was about.

Yes,I understand that strictly speaking you're correct.I was making a more general point regarding how badly our Supreme Court has ruled...on more than one occasion.

[zeugma]

I think The following is the most interesting part of the entire opinion, even though it's just a footnote...

1 As the Court suggests, Congress is responsible for the proliferation of duplicative prosecutions for the same offenses by the States and the Federal Government. Ante, at 28. By legislating beyond its limited powers, Congress has taken from the People authority that they never gave. U. S. Const., Art. I, §8; The Federalist No. 22, p. 152 (C. Rossiter ed. 1961) (“all legitimate authority” derives from “the consent of the people” (capitalization omitted)). And the Court has been complicit by blessing this questionable expansion of the Commerce Clause. See, e.g., Gonzales v. Raich, 545 U. S. 1, 57–74 (2005) (THOMAS, J., dissenting). Indeed, it seems possible that much of Title 18, among other parts of the U. S. Code, is premised on the Court’s incorrect interpretation of the Commerce Clause and is thus an incursion into the States’ general criminal jurisdiction and an imposition on the People’s liberty.

[conservatism_IS_compassion]

Dred Scott...three-fifths of a person.

That is not what “3/5 of a man” was about. It was about state representation for people who could not vote. The slaveholding states wanted their slaves to be counted in the census for purposes of appointing congressmen. The free states wanted slaves not counted, since they couldn’t vote. The compromise was to count them at 60% (3/5). It was intended to benefit slaves, not to say that they were less than human. — Piranha

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The real point is not that slaves were not “persons,” but that they could not vote.

As an aside, while visiting NOLA nothing would do but that my wife and daughter signed us up for a tour of an old sugar plantation. The tour guide was the only non-Afro person on the tour besides us, and it wasn’t exactly my idea of a comfortable scenario. Tour guide mentioned that the owner of the plantation was governor of Louisiana before the Civil War. And it only hit me afterward what I should have said - I should have asked if that governor was a Republican! Knowing, of course, that no slaveholder would have been caught dead promoting the Republican Party.

And the “naive" followup question would have been, of course, “why didn’t the slaves vote Republican?"

[Svartalfiar]

Thomas went on to add that precedent "may remain relevant when it is not demonstrably erroneous."

As much as I like Thomas, he's wrong. The ONLY place precedent has any bearing is lower courts with a similar case as one that's been decided above them. On a Supreme Court level, precedent should have ZERO bearing on ANY case. The only thing they should be looking at is the Constitution, and from there decision is made. Possibly Federal regs/laws, but only once they've determined they are proper under the Constitution. Prior cases can serve to look at legal arguments, but that's it. They shouldn't be using any other cases as source material for any decisions. They aren't law at all, they're simply an interpretation of the law in a possibly similar circumstance.