Stare Decisis: A Doctrine—and a Court—On Trial

It’s the stupid, stupid

U.S. Supreme Court Justice Clarence Thomas waded this week into what is quickly becoming a central judicial issue both nationally and in Wisconsin—the doctrine of stare decisis, or upholding court precedent—and it was fitting that he was the one holding the lightning rod.

For decades, until recent years, Thomas was the conservative justice most willing to say out loud what other conservatives would only whisper in their chambers: bad precedent doesn’t deserve respect. Progressives were a different breed in those days, mostly arguing that stare decisis preserved a reactionary rigor mortis that undermined what should be a living, breathing, evolving constitution.

The issue is prickly this year because the issue of marriage equality—gay marriage, to be exact—is potentially heading back to the court, and progressives are terrified that the justices will overturn the original decision ensuring it as a constitutional right. Thomas didn’t make them feel any better when he spoke the other night at the Catholic University of America’s Columbus School of Law.

In his inimitable way, Thomas made it a point to talk about the doctrine, and bluntly so. Essentially, he opined, if a previous decision was reasonable—even though you might have gone with another reasonable position—you go along with the precedent.

But, he quickly added, you don’t go along with the precedent if it’s “totally stupid.”

“You don’t go along with it just because it’s been decided,” Thomas said. “At some point we need to think about what we’re doing with stare decisis, that it’s not some sort of talismanic deal where you can just say ‘stare decisis’ and not think and turn off the brain.”

Thomas said he believed justices owe the people more than just following the last decision.

“So the metaphor that we have used, just think of these cases as a series of cars on a long train, and you just accept the train and you just add another car,” he said. “We just follow wherever it’s going. We never go to the front, see who’s driving the train, where it is going. You could go up there in the engine room and find that an orangutan is driving the train. Would you want to follow that just because it’s a train? I think we owe our fellow citizens more than that.”

Thomas pointed to Buck v. Bell, a 1927 Supreme Court decision upholding a Virginia law allowing compulsory sterilization of individuals deemed “feeble-minded.” The justice said he was recently reminded that it had never been overturned.

“Do we follow that?” he asked. “Do we believe that three generations of imbeciles are enough that you can go around sterilizing people just because the case has been decided or do you revisit it?”

The answer was a no-brainer, Thomas answered.

“I don’t think that any of these cases that have been decided are the gospel, and I do give respect to precedent, but the precedent should be respectful of our legal tradition and our country and our laws and be based on not just something that somebody dreamt up and others went along with.”

Progressives and corporate media alike took Thomas’s words as a warning shot over the bow.

After all, he was in the 5-4 minority against Obergefell v. Hodges, the 2015 ruling that legalized same-sex marriage nationwide, and now he was openly deriding the logic of blind adherence to precedent.

Here’s how Esquire framed it in its headline: “Clarence Thomas Has Laid Out the Conservative Plan to Take Away Marriage Equality and Birth Control.”

I’ll pause until the laughing stops.

OK, now where were we? Oh yeah, so progressives say the “trashing” of stare decisis, as they describe it, is nothing more than dressed-up language for judicial activism. The problem is that their definition conflates judicial activism and judicial review, two distinct concepts.

Judicial review, a concept embedded in American constitutional law since 1803 in Marbury v. Madison, is the authority to void unconstitutional acts, including reviewing previous court decisions. One excellent example of proper stare decisis is the court’s unanimous decision in Brown v. Board of Education, overturning the legal precedent of “separate but equal” established in the 1896 case of Plessy v. Ferguson.

Judicial activism is something entirely different—the injection of political will into judicial rulings, essentially legislating from the bench. To get a flavor of this type of decision, pick just about any major ruling by the Wisconsin Supreme Court since progressives took control of it in 2023.

Thomas’s Gamble

The Catholic University speech echoed arguments Thomas has been making in his writing for years, perhaps most assertively in his 2019 concurrence in Gamble v. United States.

The case itself involved the “dual sovereignty” doctrine of double jeopardy—whether both state and federal governments could prosecute a person for the same underlying conduct. While the court upheld the doctrine and Thomas concurred, Thomas used the occasion to issue a forceful declaration on the subject of precedent.

“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,” he wrote.

In essence, Thomas argues, using stare decisis to rigidly endorse clearly wrong-headed decisions of the past was a form of judicial activism and an abdication of judicial review.

“In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the court should correct the error, regardless of whether other factors support overruling the precedent,” he wrote.

The constitution’s supremacy is reflected in its requirement that all judicial officers, executive officers, Congressmen, and state legislators take an oath to “support this Constitution,” Thomas reminded us.

“Notably, the Constitution does not mandate that judicial officers swear to uphold judicial precedents,” he wrote. “And the Court has long recognized the supremacy of the Constitution with respect to executive action and ‘legislative act[s] repugnant to’ it.”

Progressives: Whistling Dixie

The irony of all this is that progressives are whistling a new tune on stare decisis, after denouncing it for decades as a mechanism for sustaining social injustice, particularly in the segregationist South.

Now it’s the progressives whistling Dixie, for their aggressive defense comes at a time when they are desperate to protect landmark decisions by progressive courts of the past, rulings that amounted to little more than political malarkey, or that, as Thomas put it in his Catholic University speech, were “totally stupid.”

When conservatives were raising arguments for upholding precedent—a lot more legitimately, I might add—as a shield against the activist excesses of the Warren and Burger courts, progressives called for constitutional flexibility and the notion of a “living Constitution.” Now the roles are reversed, at least on the national level. When conservatives overturned a progressive darling—Roe v. Wade—progressives suddenly rediscovered reverence for precedent.

Justice Arthur Goldberg once quipped that judges “use stare decisis rigorously when you want to overrule a prior precedent that you don’t like, but loosely when it’s one of yours.” That cynical quip, Thomas says, is “close to accurate.”

The hypocrisy is hard to miss. Generally speaking, progressives in the twentieth century argued that judges should adopt a more scientific, critical approach rather than reflexively bending the knee to precedent. Meanwhile, originalists were mocked for clinging to the past. Now that conservatives are in command on the U.S. Supreme Court, the progressive minority has turned stare decisis into a sacred text, defending yesterday’s social justice rulings as untouchable.

What was once a jail cell is now a command module.

At least federally, and for the moment. As the Wisconsin court shows, that can turn on a dime. This selective faithfulness undermines the doctrine itself. If precedent is respected only when it protects your policy preference, then it ceases to be a neutral principle and becomes a partisan tactic. Thomas’s critique is that law cannot be grounded in such expedience.

None of which means Thomas is an apostate about precedent. He has always distinguished between reasonable but debatable cases, where stability is preferable, and cases that are flatly wrong. The deeper problem, he argues, is that the modern court has sometimes treated stare decisis as an inexorable command and that progressives who now brand conservative reversals as “judicial activism” are missing the point.

The real point for Thomas is that the court is not imposing policy or making law; it is exercising judicial review, the authority established in Marbury to invalidate unconstitutional law. Or, as others have said it, judicial review is rooted in the separation of powers, while activism is an abuse of it.

Historical Roots

Thomas has not climbed out on the proverbial limb here, historically at least. James Madison himself acknowledged that exceptions to stare decisis were sometimes necessary: “That cases may occur which transcend all authority of precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves,” he wrote to C.E. Haynes in 1831.

Chief Justice John Marshall’s court treated precedent with respect. During his tenure in the early 1800s, the Congressional Research Service points out, the court followed a “limited notion of error correction,” adhering to precedent when possible but correcting prior rulings when they were “clearly in error,” “premised on an incomplete factual record,” or undermined by subsequent decisions.

That balance—respectful but not incarcerated by it—was the true constitutional tradition. It showed that the Founders valued both stability and truth, but that they knew that true stability never forfeited truth.

Justice Samuel Alito echoed this duringhis confirmation hearings. Asked what “special justifications” counsel for overruling precedent, he responded:

That is the essence of Thomas’s claim: The law cannot be allowed to make a death pact with its own mistakes.

Wisconsin’s Turn in the Mirror

This national fight is not abstract in Wisconsin. With a radical state Supreme Court and a bevy of crucial decisions headed its way, stare decisis is front and center here, too—complete with the same specious progressive arguments.

As usual, it is the progressives who have flipped their positions because their only real loyalty is to power. On the conservative side, justice Rebecca Grassl Bradley has aligned herself with Thomas’s more hard-nosed but commonsense approach, urging respect for the doctrine’s role in providing judicial stability while refusing to treat it as a Holy Grail.

In St. Augustine School v. Taylor, in 2021, she wrote a dissent that cast the ability to overcome bad precedent as a follower, not an outlier, of constitutional constancy.

“This court has no apprehension about being a solitary beacon in the law if our position is based on a sound application of this state’s jurisprudence,” Bradley quoted 2003’s Johnson Controls. “But when our light is dim and fading, then this court must be prepared to make correction. Stare decisis is neither a straitjacket nor an immutable rule. We do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.”

But Bradley has also accused the court’s progressive majority of practicing “convenient fidelity,” wielding stare decisis only when it protects their favored outcomes and discarding it when it does not.

Her dissent in 2024’s Priorities USA v. Wisconsin Elections Commission, a statutory interpretation case, sharpened the critique. There, the majority accepted a petition to bypass the appeals court and directly reconsider Teigen v. WEC, which had held that drop boxes for absentee ballots were unlawful. Bradley warned the move was nothing but a partisan ploy.

In a scathing dissent of that order, Bradley said the majority was working as an openly progressive faction to rebalance political power in the state, having already tossed out legislative maps previously adopted by the court, and was again trying to “increase the electoral prospects of it preferred political party.”

“Finding the decision politically inconvenient, and emboldened by a new makeup of the court, this new majority embraces the opportunity to overturn Teigen,” she wrote. “The majority’s decision to do so will upset the status quo of election administration mere months before a presidential election and lead to chaos and confusion for Wisconsin voters and election officials.”

She reminded her colleagues that petitioners had provided no reason why Teigen should be revisited—only “regurgitat[ing] the arguments made in Justice Ann Walsh Bradley’s dissent,” arguments the court had already dismissed: “To state the obvious, this court was aware of the dissent’s arguments before it issued its decision in Teigenbut found the dissent’s arguments unconvincing.”

The doctrine of stare decisis, she wrote, demands respect for precedent as “fundamental to the rule of law” and prevents cases from becoming “a mere exercise of judicial will.”

Bradley then turned justice Rebecca Dallet’s past words back on her. Once, Dallet had insisted that an “extraordinary showing” is required to overturn precedent, Bradley observed. That showing, Bradley argued, must include whether the decision is unsound in principle, unworkable in practice, or undermined by new law or fact. Petitioners offered none of that, the conservative justice argued.

“The petitioners fail to identify a single reason to overturn Teigen,” she wrote. “The majority nevertheless grants this petition because the court’s membership changed, presenting the opportunity to overturn a decision the majority dislikes.”

The outcome, Bradley wrote, was pre-determined.

“The majority grants this petition to overturn Teigen and decree that drop boxes are lawful in another shameless effort by the majority to readjust the balance of political power in Wisconsin,” she wrote. “...Overturning Teigen, a mere two years after its issuance, is nothing but a partisan maneuver designed to give the majority’s preferred political party an electoral advantage. This is not neutral judging.”

Overturning that decision, Bradley warned, would destabilize election laws on the eve of a presidential election.

“Our country is saturated with intense partisan politics and disagreement,” she wrote. “Citizens increasingly question the legitimacy of elections with each election cycle. This court should not add fuel to the fires of suspicion engulfing our state and nation. … This is supposed to be a court of law, not power politics. I dissent.”

The tensions she described echo those at the federal level. Nationally, marriage equality is on the table; in Wisconsin, Act 10 looms large. The stakes are immense in both arenas. Unfortunately, the pattern is the same: progressives embrace stare decisis as though it were one of the Ten Commandments—if they believed in the Ten Commandments—when it secures their political wins. They cast it aside as institutional fascism if it might deliver a blow to their political agenda.

Comparing their federal propaganda to their state propaganda proves it.

Conservatives, on the other hand, tend to use the doctrine as it was meant to be used—as a stabilizing assessment tool judging precedent to be important but not infallible, embracing the assumption that, as Thomas said the other night, if a previous decision was reasonable—even though you might have gone with another reasonable position—you go along with the precedent.

But you don’t if it’s “totally stupid.” That’s the beauty of conservatism, isn’t it—it’s so commonsense in a street-level kind of way.

Or, as the justice wrote more formally:

That’s just honest judging, but honesty is not the progressive way,

To underscore that point, on the state level, the progressive majority has thrown the doctrine overboard altogether. If recent history is any indication, Act 10 will be discarded without serious application of stare decisis. Perhaps I am wrong, and honest jurisprudence will be restored. If so, Bradley may regret her decision not to run again.

The question is not whether stare decisis is good or bad, but whether it is applied honestly—whether judges make a thoughtful assessment of precedent as reasonable and still applicable, or whether they weaponize it politically.

Progressives miss the point. Stare decisis is not a command of blind fidelity nor a license for complete disregard, depending on your weekly whims. It is a doctrine of stability that demands we assess precedent honestly and consistently. What Thomas has done—what Bradley echoes—is to force us to confront the questions directly. Do we really believe that bad law should endure just because it is old? Do we really want an orangutan driving the train? Do we want to throw out previous deliberations and consensus because a woke mobs threatens us with its superior morality and institutional muscle?

The Wisconsin court, like the U.S. Supreme Court, is entering a season where those questions will not be theoretical. Act 10, reproductive rights, redistricting, and more are all barreling down the tracks, and when the train reaches the rail yard, the test will be whether justices have the courage to walk to the front of the train and assess honestly the precedents before them—or whether they remain comfortably in the progressive caboose, dictating from the ideological rear.

With a Supreme Court election coming, voters in Wisconsin might well ask themselves instead whether we have orangutans engineering the court. If they do ask, with every new decision that comes down the pike, it won’t be stare decisis on trial.

It will be the court’s progressive majority standing before the people in judgment, at last. I’d say there won’t be any stare decisis there.