Brett Kavanaugh and Clarence Thomas tackle issue of ‘erroneous’ precedents ahead of Supreme Court oral arguments

Gorsuch, the author of the Court’s majority opinion in the case, confronted precedent set by Apodaca v. Oregon in 1972 over the issue of unanimous juries in criminal trials, pointing to a history of English common law, founding documents, and arguments from former justices that he said runs counter to court precedent. In Apodaca v. Oregon, the court determined in a 5-4 decision that unanimous juries were not protected rights under the Sixth Amendment of the Constitution for serious offenses in criminal trials.

“In the final accounting, the dissent’s stare decisis arguments round to zero. We have an admittedly mistaken decision, on a constitutional issue, an outlier on the day it was decided, one that’s become lonelier with time,” Gorsuch wrote in the majority opinion.

Stare decisis, a Latin term that roughly translates to “to stand by things decided,” is a legal doctrine often used by the court to give deference to previous decisions rather than overruling them. However, Kavanaugh argued that the principle has never been treated as an “inexorable command” and that it is the duty of the court to overturn “erroneous precedents.”

“Why stick by an erroneous precedent that is egregiously wrong as a matter of constitutional law, that allows convictions of some who would not be convicted under the proper constitutional rule, and that tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects,” Kavanaugh wrote in a concurring opinion.

Kavanaugh took issue with the way some precedents have been established in the Supreme Court’s history, including the 1973 Roe v. Wade decision, which determined that abortions fall within a constitutional right to privacy. Kavanaugh argued that the Bill of Rights ought not be incorporated to the states through the due process clause of the 14th Amendment but rather through the privileges and immunities clause.

“Due process incorporation is a demonstrably erroneous interpretation of the Fourteenth Amendment. As I have explained before, “[t]he notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words,” Kavanaugh wrote.

“The unreasonableness of this interpretation is underscored by the Court’s struggle to find a “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not, as well as its many incorrect decisions based on this theory,” citing Obergefell v. Hodges and Roe v. Wade as examples.

In the case of Roe v. Wade, rights incorporated through the due process clause have often been based on the legal idea of substantive due process, which birthed the concept of a right to privacy. Other justices, including conservative Justice Clarence Thomas, have objected to this view, asserting that the privileges and immunities clause specifically protects fundamental rights of citizens across states and that the due process clause refers to procedures of due process.

“Our judicial duty — not to mention the candor we owe to our fellow citizens — requires us to put an end to this Court’s due process prestidigitation, which no one is willing to defend on the merits,” Thomas, who was nominated by President George H.W. Bush, wrote in the decision.

Thomas predicted the distinction between the two clauses would be relevant in future cases.

In the high court’s Monday decision in Ramos v. Louisiana, liberal Justice Sonia Sotomayor, an Obama nominee, agreed with the majority that overruling precedent in the case was imperative. “Overruling precedent here is not only warranted, but compelled,” Sotomayor wrote.

In the minority’s dissenting opinion, conservative Justice Samuel Alito said the decision’s outcome would have a long-term effect on how precedence is considered. “The doctrine of stare decisis gets rough treatment in today’s decision,” Alito wrote.

“Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn,” he said.

The high court will hear oral arguments over the telephone for cases involving President Trump’s financial records, religious liberty, and the Electoral College in early May.