"I think it's the role of the president of the United States to stay back, to not inflame the tensions. I think he should have just reserved comment and said he's praying for the family as we all are."
--Kayleigh McEnany, Donald Trump's former Press Secretary, criticizing President Biden on Fox News
Justice Clarence Thomas said overruling a 40-year precedent is justified because it wrongly interpreted the Constitution.
When the United States Supreme Court issues a published opinion ruling on a case, that ruling becomes precedent for future decisions. Under the legal principle of stare decisis (Latin for “to stand on the decisions”), the Court must abide by its settled precedents–even if individual justices may now disagree–unless there is a compelling reason to overrule the decision. This doctrine is designed to ensure that precedents are not routinely overruled whenever the Court gets a new justice who happens to lean the other ideological way.
Sometimes, of course, the Court does overrule its own prior decisions. In accordance with stare decisis, this typically requires a “special justification” beyond a belief that the original decision was wrong, such as significant legal developments since the decision. For example:
In the 1896 case Plessy v. Ferguson, the Court upheld the constitutionality of racial segregation, ruling that “separate but equal” accommodations were sufficient. In the 1954 case Brown v. Board of Education, the Court unanimously (9-0) reversed its prior decision and held that the Constitution prohibited the “separate but equal” notion.
In the 1986 case Bowers v. Hardwick, a divided (5-4) Court upheld a statute criminalizing homosexual sex (“sodomy”). In the 2003 case Lawrence v. Texas, the Court voted to overrule its prior decision, holding that the constitutional right to privacy protects private consensual sexual conduct, whether heterosexual or homosexual. By the time the Court decided Lawrence, only 13 states still criminalized homosexual sex.
In the 1971 case Baker v. Nelson, the Court dismissed an appeal from a Minnesota court decision upholding a law prohibiting same-sex marriage. There was no written opinion, no discussion, no vote, and no consideration of the merits. Nevertheless, because of the particular procedural way in which the case reached the Court, that dismissal was technically a decision on the merits and became binding precedent. In the 2015 case of Obergefell v. Hodges, the Court voted to overrule its prior decision, holding that the Constitution protects the right to marry, whether heterosexual or homosexual. By the time the Court decided Obergefell, 36 states had already established same-sex marriage.
There is at least one Justice sitting on the Supreme Court today who has evinced an outright disdain for stare decisis: Clarence Thomas. Thomas has an extensive list of case he would overturn immediately if given the chance, including but not limited to:
Brown v. Board of Education (which he has explicitly criticized)
Lawrence v. Texas (from which he dissented)
Obergefell v. Hodges (from which he dissented)
Grutter v. Bollinger (from which he dissented), which upheld affirmative action policies that consider race as one factor among many others
Roe v. Wade
Griswold v. Connecticut, which established the constitutional right to privacy upon which Roe v. Wade is based
New York Times v. Sullivan, which protects statements about public figures from defamation lawsuits in the absence of actual malice
Loving v. Virginia, which held that bans against interracial marriage are unconstitutional
Thomas’s supposed justification for his extremely narrow views is that he considers himself a strict textualist and literalist. If it isn’t written expressly in the Constitution, then it doesn’t exist. For example, Loving v. Virginia held that the constitutional right to “liberty” in the Fifth and Fourteenth Amendments includes the freedom to marry. Thomas, in contrast, maintains that “liberty” has only its literal meaning: “freedom from physical restraint.”
Thomas has specifically declared that even long lines of settled cases should be overturned if they are (in his opinion, at least) “divorced from the text, history, and structure of our founding document.” Note, however, that on occasion Thomas somehow manages to compromise his supposed principles. For example, in United States v. Lopez, he argued that the Constitution gives the federal government no right “to regulate marriage … throughout the 50 States”; in United States v. Windsor, he subsequently voted to uphold the Defense of Marriage Act, in which the federal government defined marriage as “the union of one man and one woman” throughout the 50 states.
This past Monday, Thomas managed to combine the worst of both worlds. In the 1979 case of Nevada v. Hall, the Supreme Court voted 6-3 that the Constitution does not immunize states from lawsuits against them in other states. In Franchise Tax Board v. Hyatt, the Court voted 5-4 to overturn that 40-year-old precedent and absolutely bar such lawsuits, throwing out a judgment against California in the Nevada courts after two decades of litigation.
Thomas authored the majority opinion on behalf of himself and the other four conservative members of the Court (including new Justices Gorsuch and Kavanaugh). Departing from his usual approach of textualism and literalism, Thomas admitted that “no constitutional provision explicitly grants that immunity,” but nevertheless held that sovereign immunity is “implicit in its structure” and “supported by historical practice.” (This is, of course, precisely the reasoning that led to the constitutional right to privacy, against which Thomas has railed so often.) He was thus comfortable declaring it to be “embedded in the text and structure of the Constitution,” even though it doesn’t actually appear anywhere in the text or structure of the Constitution.
Thomas further recognized that stare decisis should preclude the Court from overturning Nevada v. Hall without some special justification. Rather than try to find one–which he could not–Thomas simply brushed aside the entire doctrine and overruled the precedent on the sole ground that five out of nine current justices thought it was wrong: “Stare decisis does not compel continued adherence to this erroneous precedent.”
So Thomas believes in the strict, literal interpretation of the text of the U.S. Constitution… except when he’s the one who wants it to say something it doesn’t. And Thomas and his four fellow conservatives have now shown that they will freely depart from stare decisis and overturn any prior decision with which they now happen to disagree.
You don't even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role. ... Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.
Rep. Lindsey Graham, January 16, 1999, arguing for the impeachment, conviction, and removal of President Bill Clinton
State Rep. Bill Sanderson cited the health of his son-in-law and his growing winery business as his reasons for resigning, but some claim messages he sent to gay men were the real reason Sanderson
Tennessee State Rep. Bill Sanderson is a “hard-line Republican who voted staunchly against LGBTQ interests.” He strongly opposes the U.S. Supreme Court ruling on marriage equality. He has voted against bills that would have given access to bathrooms to trans students, supported two separate bills that allowed therapists and adoption agencies to discriminate against gay people, and voted against allowing municipalities in Tennessee to enact LGBT nondiscrimination ordinances.
“Sanderson, during his time in office, has cast many, many votes in support of anti-LGBT legislation. In 2011, Sanderson voted to adopt HB 600, which banned municipalities from adopting ordinances prohibiting anti-LGBT discrimination and overrode and nullified an ordinance that Nashville had adopted. In 2012, Sanderson voted for legislation requiring abstinence-based sex education in public schools, a bill that notably banned discussion of ‘gateway sexual activity.’ ... In 2016 Sanderson signed onto a resolution denouncing the U.S. Supreme Court’s ruling legalizing gay marriage in Obergefell v. Hodges. He then voted to defund the University of Tennessee at Knoxville’s Office of Diversity over a controversy surrounding the annual Sex Week and the use of gender neutral pronouns. Sanderson supported HB 1840, the bill that allowed therapists to decline to see patients if they are gay, in violation of the American Counseling Association’s code of ethics. In 2017, he voted for HB 1111, the ‘natural and ordinary meaning’ bill, widely perceived as an effort to attack LGBT parents. Earlier this year, Sanderson voted in support of HB 1274, which would require the state to defend local school systems from lawsuits if they passed a transgender bathroom ban; in favor of HB 1151, a watered down attempt at a transgender bathroom ban; and for HB 836, which would allow adoption agencies to discriminate against gay couples seeking to adopt.”
Sanderson’s vehement anti-LGBT+ stance would be sufficiently ironic just because his own son is gay and in a long-term relationship. But Sanderson now joins the illustrious list of closeted male Republican lawmakers who consistently legislate, vote against, and denounce the LGBT+ community, while at the same time actively soliciting gay sexual partners for themselves.
Last week a report was published with substantial evidence that for years Sanderson has been “openly soliciting sex with much younger men on Grindr, a gay hook-up and dating app.” Sanderson used Grindr to “send sexually explicit messages and nude photos to other men”... specifically to “much younger men, frequently asking them to meet up.” His Grindr bio said he had a “burning desire” for “a connection with a guy” and liked “down and dirty guy to guy play.”
Sanderson has stridently denied everything, insisting that all of the evidence against him has been faked and threatening those who exposed him. He has nevertheless resigned, claiming he needs to “spend more time with his family.”
