Thomas Fires ‘Opening Salvo’ For SCOTUS To Overturn Own Precedents

talkingpointsmemo.com ^ | 6/17/2019 | Josh Kovensky

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In a sneaky Monday concurrence, Justice Clarence Thomas laid the groundwork for the Supreme Court to overturn its own longstanding precedents in what may mark the beginning of efforts to destroy numerous landmark court decisions from the past decades.

The concurring opinion came in Gamble v. United States, a case regarding double jeopardy that Thomas used as a springboard to argue that the Supreme Court should review — and overturn — settled law where it is found to be “demonstrably erroneous.”

Constitutional law scholars told TPM that Thomas appeared to use the concurrence to signal to his fellow justices — and the wider public — that the new conservative majority is interested in overturning years of settled law.

“People can legitimately fear that this opinion provides a kind of intellectual cover and justification for the over-rulings that this new conservative majority may be about to engage in,” Samuel Bagenstos, a University of Michigan law professor and former Obama Administration Justice Department official, told TPM.

Melissa Murray, a professor at NYU Law, described it as an “opening salvo for those on the court…to take a more permissive view of stare decisis that is not nearly as deferential as what we’ve seen.”

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The best opinion in this case is the brilliant Gorsuch dissent trying to make prohibitions on double jeopardy actually mean something taking judicial notice of a fact we all know - the US criminal code has grown to the point that every adult American can be prosecuted for some violation or other.

You're right. I hadn't made it down that far in the decision. I'm actually surprised that Thomas didn't sign on with it. Sometimes I don't understand Justice Thomas.