Washington, D.C. – In a concurring opinion in the Gamble v. United States decision released on Monday, June 17, 2019, Justice Clarence Thomas discussed at some length “the proper role of the doctrine stare decisis,” in what many court-watchers believe may be an attempt prepare the Court to overturn precedents such as the 1973 Roe v. Wade decision that inserted a manufactured “right” to abortion into the Constitution.
Justice Thomas opined that the current application of stare decisis “elevates demonstrably erroneous decisions” over the actual text of the Constitution and that overruling those errant decisions would return stare decisis to its proper role.
Justice Thomas wrote:
In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always “tempting for judges to confuse our own preferences with the requirements of the law”. . . and the Court’s stare decisis doctrine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises “force” and “will,” two attributes the People did not give it. . .We should restore our stare decisis jurisprudence to ensure that we exercise “mer[e] judgment,” . . . which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.
The following reaction to Justice Thomas’ statements is attributable to Troy Newman, President of Operation Rescue.
For years, those of us that oppose abortion have strongly believed that Roe v. Wade was wrongly decided because it created a fallacious “right” to abortion out of whole cloth. I very much support Justice Thomas’ view of stare decisis and the need to dispense with rulings that have manufactured “rights” that the Constitution never established, including abortion.
Years ago, we had a saying to the effect that if the womb had a window, abortion would never be tolerated. Today, with the advent of ever-improving ultrasound technology and advances in the field of fetology, we now have that ‘window in the womb’ that shows us clearly that the pre-born baby is a distinct, individual human being that should be accorded the same legal protections that the rest of us enjoy. I look forward to the day when Roe v. Wade is swept into the dustbin of history where it belongs – which may now be sooner than later.