by Barry Goldman
Supreme Court Justice Clarence Thomas spoke recently at The Catholic University of America Columbus School of Law. He was asked how he balances stare decisis with originalism, and he made the following remarks:
Well, if I find it doesn’t make any sense … I think we should demand that, no matter what the case is, that it has more than just a simple theoretical basis.
[I]f [it’s] totally stupid, and that’s what they’ve decided, you don’t go along with it just because it’s decided.
I don’t think that … any of these cases that have been decided are the gospel, and I do give perspective to the precedent. But … the precedent should 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.
At some point we need to think about what we’re doing with stare decisis, and it’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think, turn off the brain, right?
We never go to the front, see who’s driving the train, where is it going. And you could go up there in the engine room, find it’s an orangutan driving the train, and you’re going to follow that? I think we owe our fellow citizens more than that.
To be clear, I have nothing good to say about Clarence Thomas. I think he’s a particularly bad judge, even relative to the rest of the bad judges on the Supreme Court. I think he (and they) are wrong on every significant issue. But I agree with him on this. If a decision is totally stupid, if it doesn’t make any sense, and there is an orangutan driving the train, we shouldn’t turn off our brains and go along.
The problem, of course, is that he and I disagree about which decisions are the stupid ones. In his concurring opinion in Dobbs, the case that overturned Roe v. Wade, Thomas wrote:
[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.
For those readers who don’t think in terms of case names, he is talking about rethinking the decisions that established the right to obtain contraceptives, the right to engage in private, consensual sexual acts, and the right to same-sex marriage.
Thomas voted with the majority to grant Donald Trump immunity from criminal prosecution. He voted to eviscerate the Voting Rights Act. He voted in Citizens United that unlimited campaign donations are protected First Amendment speech. I could go on. It is perfectly clear to me that those decisions are totally stupid, don’t make any sense, and there is an orangutan driving the train.
All of this is familiar to anyone who pays attention to this stuff. The point I want to make is not about any particular decisions but about the nature of law itself. The argument in favor of the “rule of law” is that it is somehow objective. Clarence Thomas and I may have very different opinions about policy, the argument goes, but “the law is the law.” It is written down in books. You can look it up. That is, after all, the point. Judges don’t get to impose their personal policy preferences; they have to follow the law.
That would be a sensible argument if “the law” were objectively ascertainable. But it’s not. There is a vital distinction between questions of law and questions of fact.
The example I like to use for a question of fact is whether Fido has worms. If you see Fido scooting around on his butt, you are likely to become interested in the answer to that question. So you collect a stool sample and take it to the vet. You hand it to the tech, and you have a pretty good idea what’s going to happen. A person who knows what she’s doing will go through a prescribed procedure and prepare a slide. Then she will look at the slide under a microscope and identify what she’s looking at as either worms or not worms. If the slide was properly prepared, and the tech was properly trained, you will get a simple, clear answer to your question. It doesn’t matter if the tech is a Democrat or a Republican or a communist or a Christian Nationalist. It doesn’t matter what her philosophy of veterinary medicine is. Worms are a matter of fact.
We like to pretend legal decisions work the same way (mutatis mutandis). You hand in your brief, and someone who knows what she’s doing follows an accepted procedure, performs an analysis, and reaches the same conclusion any other properly trained practitioner would reach given the same law and the same facts. But it just ain’t so.
Let’s consider a gun rights case. The Second Amendment says:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That’s all. Twenty-seven words. And it was enough for almost 150 years. Then in 1934 Congress passed the National Firearms Act making it illegal to possess, among other things, a sawed-off shotgun. Jack Miller was arrested for having a sawed-off shotgun, and he argued that the Firearms Act violated his right under the Second Amendment. The case went to the Supreme Court, and the Court found:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
So, the Court said, the answer is no. Miller’s right to carry a sawed-off is not protected by the Second Amendment because carrying a sawed-off shotgun has nothing to do with a well regulated militia.
And there matters remained until 2008 when a D.C. special policeman named Dick Heller applied to register a handgun he wanted to keep at home. The D.C. Code prohibited the registration of handguns, and the District denied his application. Heller made the same argument Miller had made, and the issue went back to the Supreme Court.
Justice Stevens wrote, in dissent:
The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.
That is, Stevens invoked the principle of stare decisis. He said the Court has decided that question. You just have to read the Miller decision.
Justice Scalia, with his usual snark, wrote for the majority:
And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the legislature’s power to regulate the nonmilitary use and ownership of weapons.”
Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that.
Justice Breyer also wrote a dissent. He left the lofty realm of scholarly exegesis and discussed the frightening real-world fact of gun violence in America. Even if we suppose the Second Amendment protects the right to own a handgun, he argued, that right must be balanced against the responsibility of government to protect its citizens from mayhem:
[T]he decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.
Scalia responded:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. … But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.
In other words, tough luck. The Second Amendment protects the right to bear arms. No matter how many armed robberies and murders and suicides and accidental shootings of children there are in America, no matter what the democratically elected legislature enacts, the Second Amendment prevails.
The Court revisited the question in 2022 in Bruen and made the situation worse. And there is a case coming this term from Hawaii that threatens to continue the trend. All of this is unconscionably stupid.
But I said I wanted to make a point about matters of fact and matters of law. So let’s review what happened in Heller. The United States Supreme Court granted certiorari in a case involving the Second Amendment. An extensive record was generated and reviewed. Some very smart lawyers wrote briefs. Amicus briefs were submitted by experts in several fields. Arguments were held. Some very smart clerks did exhaustive research. Quotations were collected from William Blackstone and James Madison (of course) and from dozens of dictionaries, statutes, proclamations, and treatises dating back centuries. Drafts were circulated. The Court’s own previous, unanimous decision on the question was painstakingly analyzed. The Court had all the resources in the world, all the time and talent in the world. And it divided 5 to 4 – along completely predictable lines – on the question of what the Second Amendment means.
Why? Because legal questions are not matters of fact. Because “rule of laws and not of men” is a distinction without a difference. And because the Supreme Court’s problems are not factual or legal. They are moral.
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