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

Dec 2014
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The man is a national treasure, someone who should be held up to all and in particlar to black Americans. But the rotten left has smeared him. Still, he stands above them all.


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.”
Here the Court’s role is set forth in Article III, § 1 of the Constitution, as the exercise of “judicial Power.” Citing two decisions by Chief Justice John Marshall, the Federalist Papers, and James Madison’s correspondence, Thomas explained,
That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particular “case” or “controversy” before the court. . . . It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” . . .​

That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legislate). . . . The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” . . .

Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. . . . [It] is not the power to “alter” the law; it is the duty to correctly “expound” it.


Thomas recognized the pedigree of stare decisis in English common law but added that judges were long expected to correct erroneous precedent. Moreover, federal courts look to different sources of law than common-law courts: They “need not—and generally cannot—articulate the law in the first instance,” but are primarily bound by “three bodies of federal positive law—the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing ‘customs’ or ‘rules and maxims.’”
...


Justice Clarence Thomas Stare Decisis Originalist Persepective | National Review
 
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Someday, in the not 2 distant future, the shoe will be on the other foot.

You do know that Gamble upholds that a person can be tried for both a federal crime and a state crime @ the same time. Double jeopardy does not apply. I bet DJT is worried.
:cool:
 
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The man is a national treasure, someone who should be held up to all and in particlar to black Americans. But the rotten left has smeared him. Still, he stands above them all.


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.”
Here the Court’s role is set forth in Article III, § 1 of the Constitution, as the exercise of “judicial Power.” Citing two decisions by Chief Justice John Marshall, the Federalist Papers, and James Madison’s correspondence, Thomas explained,
That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particular “case” or “controversy” before the court. . . . It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” . . .



That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legislate). . . . The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” . . .

Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. . . . [It] is not the power to “alter” the law; it is the duty to correctly “expound” it.



Thomas recognized the pedigree of stare decisis in English common law but added that judges were long expected to correct erroneous precedent. Moreover, federal courts look to different sources of law than common-law courts: They “need not—and generally cannot—articulate the law in the first instance,” but are primarily bound by “three bodies of federal positive law—the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing ‘customs’ or ‘rules and maxims.’”
...


Justice Clarence Thomas Stare Decisis Originalist Persepective | National Review
Fuck him, we all know and have witnessed that this is not afterall a nation of laws.
 
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Thomas is definitely in the top three for greatest Justices to ever serve on the Court.
 

Ian Jeffrey

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Thomas is merely trying to justify why he does not really care for precedent at all - a longstanding and well-known opinion of his. He looks for an excuse to ignore and overrule precedent he does not like.
 
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Thomas is merely trying to justify why he does not really care for precedent at all - a longstanding and well-known opinion of his. He looks for an excuse to ignore and overrule precedent he does not like.
What are you basing that on?
 
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Ian Jeffrey said:


Thomas is merely trying to justify why he does not really care for precedent at all - a longstanding and well-known opinion of his. He looks for an excuse to ignore and overrule precedent he does not like.

What are you basing that on?
The opinion he wrote in Gamble. As Ian Jeffrey indicated, Thomas does not care for stare decisis otherwise known as precedent. He wrote this opinion to set the ground work for overturning marriage equality - Obergefell v. Hodges, 575 U.S. ___ (2015).
:cool:


Clarence Thomas suggests the Supreme Court’s marriage equality ruling should be overturned
 
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Thomas is definitely in the top three for greatest Justices to ever serve on the Court.
:rolleyes::rolleyes::rolleyes::rolleyes:

Clarence Thomas is the best-known Supreme Court justice — and the most disliked
Clarence Thomas is the best-known Supreme Court justice — and the most disliked | YouGov

Anytime a #Trumpcultist casts an opinion on "the best", "the greatest", or whatever, you must use the qualifier "according to #Trumpcult". Because the majority of Americans are going to think just the opposite. Clarence Thomas, case in point, along with the Orange Messiah and other objects of cult worship.
 
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:rolleyes::rolleyes::rolleyes::rolleyes:


Clarence Thomas is the best-known Supreme Court justice — and the most disliked | YouGov

Anytime a #Trumpcultist casts an opinion on "the best", "the greatest", or whatever, you must use the qualifier "according to #Trumpcult". Because the majority of Americans are going to think just the opposite. Clarence Thomas, case in point, along with the Orange Messiah and other objects of cult worship.
You don't like him because he upholds the constitution.

You are upset that he is using your toilet paper.
 
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Ian Jeffrey said:


Thomas is merely trying to justify why he does not really care for precedent at all - a longstanding and well-known opinion of his. He looks for an excuse to ignore and overrule precedent he does not like.



The opinion he wrote in Gamble. As Ian Jeffrey indicated, Thomas does not care for stare decisis otherwise known as precedent. He wrote this opinion to set the ground work for overturning marriage equality - Obergefell v. Hodges, 575 U.S. ___ (2015).
:cool:


Clarence Thomas suggests the Supreme Court’s marriage equality ruling should be overturned
Isn't the job of the Court to examine and re-examine cases?