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30 The Undergraduate Law Review at New York University Vol IV: Issue I

By What Authority ? Analyzing Stare Decisis Doctrine in Justice Clarence Thomas’s Gamble Concurrece

Micheal D. Potter Siena College

I. Introduction The premise of holds that the United States Constitution was ratified with a fixed meaning. Its language reflects its era, with all substantive changes to be executed via Article V, the constitutional mechanism for adopting Amendments. , , and George H.W. Bush’s Supreme Court appointments of Warren Burger, , , and Clarence Thomas respectively, represented the growing commitment in legal circles to address key political developments in the judiciary. These originalists tended to reject the ’s enlargement of federal legislative power post-1937, the ’s expansion of civil liberties post-1960, and the lack of formal legal methodology among American jurists at the time. The perception of the Warren Court justifying several of its landmark rulings with social science, “syllogism, metaphysics, or…ill-defined notions of natural justice”1 instead of traditional legal tools led to scathing allegations of judicial activism from originalists. The term refers to “a philosophy of judicial decision- making whereby judges allow their personal views about public policy, among other factors, to guide their decisions...”2 If such behavior was left unchecked, originalists claimed the consequences would be perilous: improperly enlarged judiciary power at odds with its traditional role as neutral arbiter; unclear meanings of constitutional provisions; and exacerbated difficulty to reverse such decisions, as only another majority opinion of the Court or an Amendment to the Constitution may reverse a prior Court’s holding. Upon closer examination, not all originalism is applied equally, particularly with regards to following prior case law. There are times where potential chaos invited by revisiting decades of case law built upon non-originalist is taken seriously. Indeed, then-Chief Justice Rehnquist acknowledged this in the case of Dickerson v. United States, where he supported preserving Miranda v. Arizona’s procedural self-incrimination guidelines, in part because of their “[embedding] in routine police practice to the point… [of being] part of our national culture.”3 Others believe the stubborn adherence to precedent promulgated from faulty premises to harbor far more serious questions regarding judicial legitimacy. President Reagan’s Attorney General for the Department of Justice, Charles Cooper, for example,

1 Miranda v. Arizona, 384 U.S. 436 (White, J., dissenting), at 532. 2 Mark Franek, “Judicial Activism: A Tempest or a Tempest in a Teapot?” The Philadelphia Lawyer (Summer 2014). 3 530 U.S. 428 (2000), at 443. Fall 2020 By What Authority 31 criticized the “inherently subjective” nature of stare decisis, whose “…avowed office is to shelter error from correction.”4 Associate Justice Clarence Thomas has routinely fallen into the latter category throughout his lengthy career on the Supreme Court, where the implications of his consistent calls to revisit stare decisis often left him concurring or dissenting alone. The 2018-2019 summer term was no exception. A situational decision regarding alleged double jeopardy may contain a comprehensive originalist method towards assessing the doctrine of stare decisis: Gamble v. United States.5 The significance of a solidifying originalist bloc on the Court is not lost on legal commentators, especially given the Trump administration’s record appointment of district and appellate judges, the Supreme Court appointments of and shifting the Court’s ideological balance, the surfacing health concerns of Justice Ginsburg, the aging of Justice Breyer, and the upcoming 2020 election. These events among others provoke mass speculation over who the most influential figures shall be in the future of judicial politics. This six-part article details a comprehensive study of Clarence Thomas’s concurrence in Gamble v. United States, 587 __2019; particularly how it expands, endorses, or creates a new conception of stare decisis within originalist jurisprudence. The first part introduced the issue of applying originalism to stare decisis doctrine. The second gives an overview of originalist methodology plus Thomas’s application. The third analyzes prior work which theorized ways to negotiate non-originalist with originalism. The fourth briefs Thomas’s Gamble concurrence. The fifth juxtaposes Thomas’s stare decisis theory with his methodology, drawing parallels from scholarly work discussed in the second part. The sixth summarizes my analysis and findings of Thomas’s stare decisis doctrine. Such findings suggest that while Thomas’s stare decisis application draws from scholarly influence, his interpretation of constitutional text—particularly Article III powers—proves vital in creating a unique application of stare decisis, whose doctrine alone cannot be considered in a vacuum.

II. Our Current Understanding of Orginalism Research on originalist methodology has sharpened into three distinct schools of thought, classified by sources. Eschewing political theory influences on a jurist for the moment, we first examine each of them in turn: original intent, original understanding, and original public meaning. As the first effort to fashion a judicial methodology around neutral principles of text and history, original intent sought to identify what the delegates of the 1787 Philadelphia Constitutional Convention collectively intended constitutional provisions to mean. This is rooted in the premise that “[to interpret] a document [is] to attempt to discern the intent of the author.”6 Personal notes each delegate recorded

4 Charles J. Cooper, “Stare Decisis: Precedent and Principle in Constitutional Adjudication,” 73 Cornell L. Rev. No. 2 (1988). 5 587 U. S. __ (2019). 6 Ralph Rossum, Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration (Lawrence: University Press of Kansas, 2013), at 12. 32 The Undergraduate Law Review at New York University Vol IV: Issue I ften provide the most persuasive weight, with James Madison’s being particularly prominent by virtue of subject-matter comprehensiveness, as he and Robert Yates were among the only individuals who recorded the Convention’s events. By contrast, original understanding arose in response to criticism of original intent regarding diversity of thought among the Framers and the use of the 1787 Notes as an original matter. When its delegates convened, they “met under a secret rule that ‘nothing spoken in the House be printed, or otherwise published, or communicated without leave,’” so as a consequence, the public was unaware of the convention’s records and what was said there until decades [afterwards].”7 The necessity of secrecy casts doubt on a justice’s obligation to grant intent as weighty an influence as formerly thought. Most damning was one of James Madison’s Framing-era speeches delivered to the House floor on April 16, 1796, largely relegating original intent’s key reference, the Philadelphia Convention’s Notes, to a tertiary source (emphasis mine):

Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution. As the instrument came from them it was nothing more than the draft of the plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions. If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the General Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.8

Thankfully, Madison’s speech permitted an explicit source to discern the Constitution’s meaning. The original understanding method sought to identify how the 1787-88 state ratification convention delegates collectively understood constitutional provisions. Beyond state convention records, Papers and Anti-Federalist Papers were also studied, since they were written to persuade and clarify constitutional functions during these various State Conventions.9 Originalism still had room to develop. Thanks to Justice Antonin Scalia’s forceful rhetoric, the “customary meaning of words and phrases,”10 contextualized through Founding-era dictionaries and documents of the era later became another historical source to rely upon. Known as “original public meaning,” these documents encapsulated common practice of state laws and citizen traditions of the era. For instance, if one wished to assess the constitutionality of restricting anonymous political speech, one might research how Framing-era state laws governed anonymous political speech during elections and, in turn, granted a strong presumption of correctness due to the longevity and popular approval of 7 Id. at 13. 8 Ibid. 9 Rossum, supra note 6, at 12-13. 10 Ibid. Fall 2020 By What Authority 33 such a practice. This approach, which also examines selected judicial canons of construction, is utilized frequently when perusing statutory text. These three approaches are used to “[constrain] judicial discretion and [encourage] judicial restraint,” for the greater discretion given to a judge, “the greater the freedom [exists] to write one’s personal preferences into the law.”11 Bright-line standards may be relied upon instead of tests requiring subjective balancing of perceived societal interests or deciding whether a state achieves an objective through tailored means. Originalism compels state legislatures to address each case’s consequences in a localized fashion, especially in promoting Article V’s usage. Unlike England’s unwritten, precedential “evolving” legal system, “with exception to an amendment adopted pursuant to the procedures set forth in Article V, the Constitution’s meaning cannot be updated...changed, or altered by the Supreme Court, the Congress, or the President.”12 Where does Clarence Thomas’s decision-making fall within these approaches? According to a hypothesis of former Supreme Court clerk Gregory Maggs, Thomas differentiates himself from other originalists by incorporating all three approaches into a unique variant known as general .13 Its chief objective is to “find agreement among ‘multiple sources of evidence,’ thereby ascertaining the “general meaning shown in common by all relevant sources.”14 This is intended to minimize the possibility of conflict between sources, especially considering the usage of certain sources is a particular sticking point among originalists. Some originalists, like Antonin Scalia, believe that reliance on legislative history or intent of any kind, including Framing sources such as the Declaration of Independence, are “frail substitutes for a bicameral vote” on the law’s language which, used carelessly, subverts plain language for “aspirations,” “pronouncements,” and other forms of “philosophizing.”15 Others, like Clarence Thomas, share similar concerns towards statutory legislative history but maintain that original intent sources, particularly from the Declaration of Independence, may vitally inform originalism. These thinkers believe the Declaration’s explicit reference in Article VII of the Constitution, for example, represents embodied principles which allows the American people to achieve “a new order of the ages…[a] fulfillment of the ideals of the Declaration of Independence, as Lincoln, , and the Founders understood [them].”16 Judge William H. Pryor Jr. has noted the practical implications of Thomas’s time on the Supreme Court. The divergence in Thomas’s opinions from other self-described “originalist” Justices on the Court challenges the hypothesis that originalism is a results-oriented methodology, and his presence on the Court from

11 Id. at 21. 12 Ibid. 13 Gregory E. Maggs, “Which Original Meaning of the Constitution Matters to Justice Thomas?” 4 George Washington Law Faculty Publications & Other Works No. 494 (2009). 14 Rossum, supra note 6, at 13-14. 15 Id. at 15. 16 Id. at 19-20. 34 The Undergraduate Law Review at New York University Vol IV: Issue I a political power standpoint compels petitioners, respondents, and fellow Justices to address textual and historical originalist arguments.17 Thus, originalism as a methodology, can thrive under its users from term to term.

III. Negotiating Orginalism and Precedence One aspect of originalism which creates ambiguity is its ideal relationship with the doctrine of stare decisis. Latin for “to stand by things decided,” the practice of following prior court decisions is universally considered integral to upholding judicial stability and legitimacy. If a Court regularly alternates between different rulings on the same issue, the signals sent to policymakers regarding correct ways to create law would be in a constant state of uncertainty. Moreover, the public’s confidence in witnessing routine reversals on case law may especially be compromised if such changes often correlate with political rotation of popularly elected officials. When non-originalist decisions serve as a foundation for well- settled precedent, originalists must negotiate between methodological purity and consequential pragmatism. Utah Supreme Court clerk James Cleith Phillips has identified several approaches prominent scholars have suggested, each which grant stare decisis varying degrees of influence within originalism.18 On one side of this sliding scale, there are those who believe stare decisis should play a lesser role in originalist decision-making. These include Michael Stokes Paulsen, Gary Lawson, Akhil Reed Amar, and Randy Barnett. Paulsen declared stare decisis capable of corrupting any methodology, given that originalism’s interpretive premises would be undermined by elevating bad precedent over the Constitution’s plain text if a non-originalist precedent is upheld.19 Lawson elaborated on Paulsen’s points by illustrating a constitutional conflict between the judicial duty to interpret and apply the bodies of positive law (e.g., the Constitution, federal statutes, treaties, rules and regulations), or recognize a prior court’s interpretation as authoritative. Lawson criticized the extent that stare decisis is relied upon as a non-explicit source of Article III authority by virtue of its own doctrine at the expense of said positive law sources. Lawson later extended the permissive use of prior decisions to situations when “the precedent is the best available evidence of the right answer to constitutional questions”—mostly in an epistemological sense, rather than a legal or economic one.20 Amar and Barnett took different tacks. Textually speaking, Amar posited the Constitution always trumped precedent, but distinguished another type of stare decisis involving judge-made “tests or doctrines” which affects the application of

17 William H. Pryor Jr., “Justice Thomas, Criminal Justice, and Originalism’s Legitimacy,” 127 Yale L.J. No. 73 (2017), at 174-76. 18 James Cleith Phillips, “Is Stare Decisis Inconsistent with the Original Meaning of the Constitution? Exploring the Theoretical and Empirical Possibilities,” 91 Notre Dame L. Rev. No. 2 (2016), at 116-117. 19 Michael Stokes Paulsen, “The Intrinsically Corrupting Influence of Precedent,”22 Constitutional Commentary No. 2 (2005), at 289-290. 20 Gary Lawson, “Mostly Constitutional: The Case Against Precedent Revisited,” 5 Ave Maria Law Review No.1 (2007), at 3-4. Fall 2020 By What Authority 35 constitutional provisions. In the sense that precedents permitted the application of these tests, Amar framed stare decisis as an “appropriate and necessary” epistemic tool, with future judges carrying the burden of proof to overcome each test’s “presumption of correctness.”21 Barnett concurred with “the superiority of the enacted text over the opinions of the branches of government” and the jurist’s role in discerning the appropriateness of judge-made tests, but narrowed Amar’s “presumption of correctness” to test- driven precedents which attempted to discern the Constitution’s original meaning.22 Barnett also proposed how to handle implicated reliance interests when revisiting long-standing precedent; by claiming originalists need only consider “properly- tailored reliance claims by individual citizens,” even if citizen claims are grounded in erroneous precedent, Barnett would exclude reliance claims by political actors whose lifespans directly tie to a law’s existence and operation. 23 There are few scholars in the center of Phillips’s scale, such as Randy Kozel and Caleb Nelson. Kozel regarded the application of stare decisis as a tiebreaker, where the “settled meaning from precedent” is upheld in two instances: when the Constitution’s meaning “is ambiguous to the point that one cannot say one is more likely than the other,” and when “the consultation of text and historical evidence is insufficient to resolve a case.”24 Nelson proposed that a plausible “range of reasonable meanings” existed for constitutional provisions, and if a precedent fell within said range, said precedence is entitled to legal force. If a precedent falls outside said range, it is “demonstrably erroneous” and should be overturned.25 Nelson cited Alexander Hamilton’s distinction between “mere legal discretion” and “arbitrary discretion” in Federalist No. 78, ’s majority opinion in Osborn v. Bank of the United States to determine “known principles of interpretation to figure out the sound construction of the act,” and James Madison’s beliefs in “a range of indeterminacy” of written laws which is determined through a state’s “regular course of practice,” and distinctions between precedents which “expound” or “alter” text. 26 A variant of Nelson’s criteria allows compelling reliance interests to counter the prospect of overturning “demonstrably erroneous” precedence, strengthening stare decisis compared to originalism’s application. Conversely, there are others, such as Michael Rappaport and John McGinnis, who believe stare decisis should play a greater role in originalist decision-making. Their theory stated that Article III’s judicial power encompassed

21 Akhil Reed Amar, “Foreword: The Document and the Doctrine,” 114 Harv. L. Rev. No. 26 (2000), at 78-89. 22 Randy Barnett, “Trumping Precedent with Original Meaning: Not as Radical as It Sounds,” 22 Constitutional Commentary No. 2 (2005), at 257-265. 23 Id. at 266. 24 Randy J. Kozel, “Original Meaning and the Precedent Fallback,” 68 Vand. L. Rev. No. 105 (2015), at 105. 25 Caleb Nelson, “Stare Decisis and Demonstrably Erroneous Precedents,” 87 Va. L. Rev. No. 1 (2001), at 1. 26 22 U.S. 738 (1824); Nelson, supra note 25, at 9-12. 36 The Undergraduate Law Review at New York University Vol IV: Issue I “certain traditional aspects of judicial office...widely and consistently exercised” at the time of the Founding.27 While they recognized that not every legal aspect during the Framers’ time period is “a requisite element of Article III,” they took great care distinguishing “[w]idely followed precedent rules [from] particular common law rules” where Article III would necessarily encompass using stare decisis.28 Unlike Paulsen and Lawson, McGuiness and Rappaport believed the Supremacy Clause and stare decisis were capable of coexistence due to the Clause’s ambiguity, and ‘[u]nder a narrower meaning, the Supremacy Clause would tell the courts to follow the Constitution’s original meaning, but...in the way that courts traditionally apply the law...in accordance with applicable precedent doctrine.”29 Distinctions existed between following supreme law and precedence: while venerating a law’s supremacy entails “following one body of law rather than another,” non-originalist precedent “[did] not involve a body of law in the ordinary sense,” and did not make such precedent supreme, but made it “orthogonal” to making law supreme.30 There is also the Supreme Court’s current approach to consider—that a precedent’s validity, among several factors to be elaborated later on, must contain “some special reason over and above the belief that a case was wrongly decided.”31 This approach tends “to overcome the Constitution’s text...more often than any other view.”32 As we see in the upcoming analysis of Gamble, Clarence Thomas disagrees with this application of stare decisis, despite its approval by a number of his brethren on the Supreme Court, and focuses the majority of his concurrence on fashioning a doctrinal alternative.

IV. Case Study: Justice Thomas, Concurring in the Judgment The case of Gamble v. United States concerned the conviction of Terrance Martez Gamble: he was pulled over for a broken taillight, his car searched due to the scent of marijuana, and a nine-millimeter pistol was found. Because Gamble was a convicted felon, he not only violated Ala. Code §13A–11–72(a) for firearm possession as a felon, but also 18 U.S.C. §922(g)(1) for its federal counterpart. This raised the issue of whether Gamble’s twin conviction constituted a Fifth Amendment’s Double Jeopardy Clause violation. The Supreme Court last addressed this issue sixty years ago in Abbate v. United States, a 6-3 ruling which affirmed federal and state authority prosecuting the same conduct on the basis of their independent authorities to self-govern—creating what was known as the separate sovereigns doctrine.33 Despite Gamble’s challenge, the 7-2 opinion authored by Justice ruled that federal and state offences, defined by the enacted

27 John O’McGinnis & Michael B. Rappaport, Originalism and the Good Constitution (Cambridge: Press, 2013), at 168. 28 Id. at 169. 29 Id. at 173. 30 Id. at 174. 31 of Se. Pa. v. Casey, 505 U.S. 833 (1992) (Opinion of O’Connor, J.), at 31. 32 Phillips, supra note 18, at 125. 33 359 U.S. 187 (1959) (opinion of Brennan, J.). Fall 2020 By What Authority 37 laws of each sovereign government, are separate, thus fall outside of the Clause’s confines. Thomas acknowledged the difficulty of concluding that the Framers meant to prohibit double prosecution of the same crime by separate state and federal entities. This was due to the “very limited potential for overlapping criminal prosecutions by the States and the Federal Government” at the Ratification, Congress’s “limited criminal jurisdiction” at the time of ratification, and the “absence of an analogous dual-sovereign system in England.”34 Thomas made sure to emphasize from the outset that much of the Court’s “proliferation of duplicative prosecutions” could be laid at the feet of the Court itself––given its “questionable expansion of the ” and raising the possibility that much of Title 18 of U.S. Code, premised on the Commerce’s Clause’s expanded scope, may be subject to review in future cases.35 Alito’s recitation of the Supreme Court’s treatment of stare decisis in the past few decades, especially in the context of Abbate, its progeny, and 170 years of Double Jeopardy understanding, prompted Thomas to write separately. As Alito put it:

Stare decisis ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ Payne v. Tennessee, 501 U.S. 808, 827 (1991). Of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation. But even in constitutional cases, a departure from precedent ‘demands special justification.’ Arizona v. Rumsey, 467 U.S. 203, 212 (1984). This means that something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court.’ Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 479 (1987). And the strength of the case for adhering to such decisions grows in proportion to their ‘antiquity.’ Montejo v. Louisiana, 556 U.S. 778, 792 (2009).36

This excerpt endorses an ongoing view of stare decisis which Thomas posited to be contrary to the Court’s role as an impartial adjudicator. In its current iteration, stare decisis is “a principle of policy” which influences the decision whether to keep or void a prior decision utilizing these factors: the “workability” of a standard, “the antiquity of the precedent, the reliance interests at stake, and… whether the decision was well reasoned.”37 The latter, according to Thomas, is subject to politically motivated manipulation. Despite the Court’s claims of maintaining this test “to promote evenhanded, predictable...consistent development of legal principles” and uphold “the actual and perceived integrity of the judicial 34 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 1-2. 35 Ibid. 36 Gamble v. United States, 587 U.S. __ (2019) (opinion of Alito, J.), at 11-12. 37 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 3. 38 The Undergraduate Law Review at New York University Vol IV: Issue I process,” Thomas questioned the legitimacy of “[elevating] demonstrably erroneous decisions…[made] outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law.”38 Thomas conceded that this traditional approach might make sense in a common-law legal system like England’s, where a judge must create law to inform existing custom-driven precedents. However, he viewed such an approach to be incompatible with the United States’ system of government—whose authority is vested in the Constitution, federal statutes, and treaties—and which tasks “political branches—not the Judiciary—with systematically developing the laws to govern our society.”39 While early common law courts “discerned and defined many legal principles in the first instance,” the Constitution authorized federal courts to apply, not create, laws articulating those legal principles. To understand the nature of stare decisis in such a system, Thomas claims, we must begin with “a proper understanding” of the judicial power of federal courts to “decide cases in accordance with law.”40 This “proper understanding,” according to Thomas, can be summarized in four statements:

a. The Judiciary lacks “force” (to execute laws) and “will” (to create laws), since they are vested in the and legislative branches. b. According to Federalist 78, the Judiciary cannot “substitute [its] own pleasure to the constitutional intentions of the legislature.” c. The duty of judicial discretion requires liquidation— “to make clear or plain”; “to render unambiguous”; to settle differences, disputes—” or ascertainment of the law’s meaning. d. This discretion is the power to correctly “expound” the law, not “alter” it.41 In English common-law, stare decisis served as “the principal and most authoritative evidence that [could] be given” unless a given decision was “flatly absurd or unjust,” since these rulings were to derive from “the known laws and customs of the land” and not “according to...private sentiments” or “private judgment.”42 These “discovered” principles consisted of the “wisdom, counsel, experience, and observation of many ages of wise and observing men,” and rested on the ‘unarticulated social processes to mobilize and coordinate knowledge gained primarily through ‘the social experience of the many,’ instead of the ‘specifically articulated reason of the few.”43 The founding generation did not see judges as infallible; William Blackstone articulated in his Commentaries that erroneous precedent ought to be reversed “to vindicate the old [rule] from misrepresentation.”44 According to Blackstone, stating a former decision’s manifest absurdity or injustice rendered the law not merely 38 Id. at 2. 39 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), 3. 40 Id. at 4. 41 Id. at 4-5. 42 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 5. 43 Id. at 6-7. 44 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J, concurring), at 7. Fall 2020 By What Authority 39 “bad,” but “not law” at all.45 James Kent, Blackstone’s American counterpart who authored the Commentaries on American Law concurred: “If...any solemnly adjudged case can be shown to be founded in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error.”46 According to Thomas, this view of stare decisis was widely accepted among the several states, citing four state cases between the Framing and antebellum eras as proof: McDowell v. Oyer (“stare decisis keeps law from depending on ‘the caprice of those who may happen to administer it’”), Guild v. Eager (“individual court decisions ‘are often reexamined, reversed, and qualified...whenever they are found to be either defective, or ill-founded, or otherwise incorrect’”), Marshall v. Baltimore & Ohio R. Co. (“Wherever the Constitution commands, discretion terminates...continued adherence to ‘palpable error’ is a ‘violation of duty, an usurpation”), and Commonwealth v. Posey (“[A]lthough I venerate precedents, I venerate the written law more”).47 Thomas claimed that this historical application of stare decisis implied limits to the discretionary authority of common law judges. They were not at liberty to “[insert] their own preferences into the law as it developed.”48 They were instead “tasked with identifying and applying objective principles of law—discerned from natural reason, custom, and other external sources. The Framers understood that if an error occurred, it was the Judiciary’s duty, in Kent’s words, to “examin[e] without fear, and revis[e] without reluctance.... hasty and crude decisions” rather than leave “the character of [the] law impaired, [its] beauty and harmony of the system destroyed by the perpetuity of error.”49 When faced with a demonstrably erroneous precedent, Thomas stated that jurists should not feel obligated to follow it, regardless of any balancing factors. He insisted that his view of stare decisis derived “directly from the Constitution’s supremacy over other sources of law—including our own precedents.”50 Thomas emphasized the Constitution’s Supremacy Clause, asserting that the oath government officials take entails upholding the Constitution, not to blindly uphold stare decisis. He reserved Marbury v. Madison as the sole exception to affirm the Supreme Court’s duty to uphold the Constitution in the face of “legislative act[s] repugnant to it.”51 Since judicial power “must be understood in light of ‘the Constitution’s status as the supreme legal document...[over] lesser sources of law,’” it would naturally limit the Court’s power to give weight to precedence in conflict with the Constitution’s language.52

45 Id. at 6. 46 Id. at 7. 47 8 Va. 109 (1787) (opinion of Tazewell, J.); 17 Mass. 615 (1822) (opinion of Parker, C.J); 21 Pa. 417 (1853) (opinion of Black, C.J.); 16 How. 314 (1854) (Daniel, J., dissenting). 48 Gamble v. United States, 587 U.S. __ (2019) (Thomas, J., concurring), at 7. 49 Id. at 8. 50 Id. at 9. 51 5 U.S. 137 (1803) (opinion of Marshall, C.J.); Gamble v. United States 587 U.S. __ 2019 (Thomas, J., concurring), at 10. 52 Ibid. 40 The Undergraduate Law Review at New York University Vol IV: Issue I Similarly, no special exceptions would exist for a federal court to reject its own erroneously decided statutory stare decisis, as it otherwise threatened to usurp legislative power. This did not mean, Thomas clarified, that the Court must always “independently assure itself that each precedent relied on in every opinion is correct as a matter of original understanding….It is permissible for the Court to assume… [its] predecessors properly discharged their constitutional role until we have reason to think otherwise.”53 Put simply, the burden to prove a precedent demonstrably erroneous and present an alternative solution to a constitutional issue would fall upon current or future members of the Court. Towards permissible precedents, Thomas took a different approach. He acknowledged the need for the Court to have the power to ascertain the meaning of laws due to the “the inability of human language to be fully unequivocal in every context”; each word possessing its own range of indeterminacy. As he put it, “Reasonable people may therefore arrive at different conclusions about the original meaning of a text after employing all relevant tools of interpretation.”54 This case is a shining example given that Justice Neil Gorsuch, one of the Court’s newest self-avowed originalists, dissented while Thomas joined the majority’s judgment. Thomas commended Gorsuch’s efforts to highlight post-ratification sources supporting Gamble’s position. They included the following: two evidentiary rules treatises explaining how acquittal for the same charge in a foreign country “could be pleaded for the same offence in England,” or “before any other tribunal,”; an 1846 Scotland High Court of Justiciary denying a defendant’s retrial “[i]f a man has been tried for theft in England,” and four American contemporaries of the 1800s— James Kent, Thomas Sergeant, William Rawle, and James Bayard. 55 These four “claimed only to recite” the English understanding of the Hutchinson rule, “an established common-law rule barring domestic prosecution following a prosecution for the same act under a different sovereign’s laws.”56 Gorsuch’s lack of “stronger showing that [the treatises] reflected the understanding of the Fifth Amendment at the time of ratification,” coupled with an insufficient showing that common law had coalesced around a definitive anti-dual sovereign view, ultimately led Thomas to abstain from his dissent.57 As a matter of originalist inquiry, Thomas stated that the difficulties of discerning original meaning did not “excuse the Court from diligently pursuing” it, even if it “require[d] a taxing inquiry,” for it prevents the Justices from “substitut[ing] their own preferences over the text.”58 He would apply his stare decisis to statutes as well, owing to the constancy of the Supreme Court’s judicial duty of “[applying] the law to...facts of the case, regardless of how easy it is for the law to change.”59 He also criticized the Court’s practice of taking legislative 53 Id. at 11. 54 Gamble v. United States 587 U.S. __ 2019 (Thomas, J., concurring), at 12. 55 Id. at 13-14. 56 Id. at 15; Gamble v. United States, 587 U.S. __ (2019) (opinion of Alito, J.), at 12. 57 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), at 14. 58 Id. at 13. 59 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), at 14. Fall 2020 By What Authority 41 silence as affirmation of an interpretation’s correctness, for it forced correctness to revolve around “what the current Congress desires, rather than by what the law, as enacted, meant.” In contrast to Justices with legislative backgrounds who may be more sympathetic to what they view as pragmatic Congressional clarification (e.g., Sandra Day O’Connor and ), Thomas regarded this practice as an invalid way “‘for our elected representatives to express their collective judgment,’” falling far short of Article I’s required “bicameralism and presentment.”60 In his concluding remarks in Gamble, Justice Thomas reaffirmed his criticism of the Supreme Court’s multi-factor “balancing approach” stare decisis method, as it encouraged “policy-driven, ‘arbitrary discretion…[quantifying] the unquantifiable” and “[sweeping] subjective factors” in decision-making.61 He attacked the premise that overturning stare decisis begets “uncertainty,” contrasting Justice Breyer’s concluding remarks in Franchise Tax Bd. of Cal. v. Hyatt, (where Breyer fretted the majority’s ruling caused “one to wonder which cases the Court will overrule next”) to Justice Kennedy’s majority opinion in the landmark Lawrence v. Texas (where he posited that not overruling Bowers v. Hardwick would “cause uncertainty.”) 62 Thomas’s counterpoints centered on how much uncertainty would disappear with a “clear, principled rule grounded in the meaning of the text” instead of invoking stare decisis when the precedent at hand was “least defensible,” or made to protect policies agreeable to a given Justice’s personal viewpoints. To Thomas, this posed thorny problems when the longevity of such precedents leads to a “ratchet-like effect,” where the chances of the precedent being overruled becomes slimmer over time.63 The most egregious example Thomas cited was in Gamble was McDonald v. Chicago, where he decried the missed opportunities to overrule the Slaughter-House Cases, overrule U.S. v. Cruikshank, and resurrect the Fourteenth Amendment’s Privileges or Immunities Clause.64 By incorporating the Second Amendment against the States via the Fourteenth Amendment’s Substantive Clause, Thomas believed confusion would persist in the vast body of Fourteenth Amendment case law. Pertinent questions such as how and when to use the Privileges or Immunities Clause, or how to distinguish between fundamental and non-fundamental rights, would remain unclear.65 With this, Thomas closed his concurrence with a solemn assertion of what he conceived as a Supreme Court Justice’s role in our system of government, striking at the very crux of his belief of what the duty demanded of him: “...to interpret the law requires adherence to the original meaning of the text,” which was why “for this reason we should not invoke stare decisis to uphold precedents that

60 Id. at 15. 61 Ibid. 62 478 U.S. 186 (1986) (opinion of White, J.); 539 U.S. 558 (2003) (opinion of Kennedy, J.,) at 17; 587 U.S. ___ (2019) (Breyer, J., dissenting), at 13. 63 587 U.S. __ (2019) (Thomas, J., concurring), at 16. 64 83 U.S. (16 Wall.) 36 (1873) (opinion of Miller, J.); 92 U.S. 542 (1876) (opinion of Waite, J.); 561 U.S. 742 (2010) (opinion of Alito, J.). 65 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), at 17. 42 The Undergraduate Law Review at New York University Vol IV: Issue I are demonstrably erroneous.”66

V. Analysis: Examining Thomas’s Stare Decisis Doctrine Explicit citations within his concurrence demonstrate a great deal of Clarence Thomas’s perspective on stare decisis doctrine. While common-law sources such as Blackstone and Kent certainly inform parts, it would be remiss to neglect the twenty-first century legal scholars referenced in Part II, which play a central role in clarifying the role of stare decisis. For instance, Caleb Nelson’s range-of-indeterminacy model, which examined how Framing and antebellum-era jurists appeared to have treated stare decisis vis-a-vis written statutory law, was referenced several times in the opinion. First, it was used to highlight distinctions between English common law and American statutory law regarding the relevance of stare decisis between the two systems. Second, it was used to cite early case law which recognized when to abandon stare decisis in lieu of reinterpreting a written text. Finally, it was used to endorse the Madisonian theory that written laws possess “a range of indeterminacy” which, if ascertained outside the interpretive range, may be considered demonstrably erroneous. The pressing question with Thomas’s application of Nelson’s range-of- indeterminacy approach is this: to what extent does the range exist? If too narrow, there would be an insufficient selection of sources to consult to reach conclusive results in a variety of cases. If too broad, methods divorced from original intent, understanding, and meaning may dilute the whole inquiry altogether and grant limitless authority to how jurists construct and interpret provisions. We have already seen one instance where originalists may undergo their analyses and yield different results, as Clarence Thomas and Neil Gorsuch did in Gamble. Prior to his comments on Gorsuch’s dissent, however, Thomas cited an analogous instance of differing originalist results between he and Antonin Scalia in McIntyre v. Ohio Elections Comm’n.67 In McIntyre, the Court struck down an Ohio statute prohibiting the distribution of campaign literature which did not contain the name of a citizen and their address or the name of a campaign official. Thomas concurred with the majority’s judgment, while Scalia, joined by then-Chief Justice William Rehnquist, dissented. Thomas’s concurrence centered on “historical evidence from the framing,” namely “whether the phrase “, or of the press,” as originally understood, protected anonymous political leafleting.” Thomas did so by citing the colonial-era Crown v. Zenger trial, the Revolutionary War era where protection was afforded to one ‘Leonidas’ for criticizing the Continental Congress’s monetary policies, and three controversies in New Jersey, Philadelphia, and Massachusetts surrounding the failed prosecutions of anonymous printers criticizing state actors.68 Meanwhile, the two dissenting Justices in McIntyre cited “a century of practice in the States,” emphasizing the lack of specific situations to anonymous political

66 Ibid. 67 514 U.S. 334 (1995). 68 514 U.S. 334 (1995) (Thomas, J., concurring), at 359-367. Fall 2020 By What Authority 43 pamphleteering during elections mentioned in the concurrence. Among other things, they emphasized that by the start of World War I, twenty-four states had enacted anonymous electioneering prohibitions.69 The salient point to derive here, however, is the Nelson model’s accommodation of ranging results even within originalist methodology, which weakens the hypothesis that originalism’s range of results are too narrow or broad. Honest disagreement and indeterminacy may exist even under Thomas’s application of Nelson’s model. South Texas College of Law Professor Josh Blackman suggested further influence on Thomas regarding his application of Nelson’s stare decisis model— Lawrence Solum and Randy Barnett’s model of constructing constitutional text. In their paradigm, “the law never ‘runs out’ in that a Court may adopt an interpretation beyond the bounds of permissible construction.”70 Thomas clarified that the range of reasonable meanings is limited to originalist methodological inquiries, and if there are “multiple, equally correct legal meanings,” the Court cannot go beyond those meanings nor defer elsewhere. It must undertake the task of discovering the most correct meaning regardless of difficulty, with the burden of doing so lessened by a critical caveat: The Court is not bound to preserve or overrule a precedent if it falls within a permissible range.71 To understand Thomas’s methodology, it is also necessary to examine how he conceives Article III’s duties involving judicial power, which is where Gary Lawson’s views become instrumental. Lawson framed Article III as “the [fundamental] power to decide cases in accordance with the law” considering the Constitution’s political supremacy over other sources of law.72 This required limits on “the power of a court to give legal effect to prior judicial decisions” if the Constitution’s plain text conflicts with precedence.73 Such a paradigm, where stare decisis is viewed extrinsically of Article III and not among the necessary tools a jurist is duty-bound to use, yields a highly anomalous methodology, especially cast against today’s legal orthodoxy. Discussion regarding the majority opinion in Gamble has revealed the Supreme Court’s tendency to utilize stare decisis for the purposes of upholding the ’s stability and legitimacy. Given the political climate of growing sensitivity to partisan court majorities, one wonders the extent of good faith these jurists and their sentiments possess, regardless of the precedents preserved or struck down.

69 514 U.S. 334 (1995) (Scalia, J., and Rehnquist, C.J., dissenting), at 373-377. 70 Josh Blackman, “Twitter/ @JoshMBlackman: 1/Running thread as I read through…,” Twitter (June 17). 2019, 12:40 p.m., https://threadreaderapp.com/thread/1140660468136198144.html; See also Lawrence B. Solum, “Legal Theory Blog,” (June 2019). https://lsolum.typepad.com/ legaltheory/2019 /06/thomas-on-precedent-and-the-interpretation-construction-distinction.html. 71 Gamble v. United States, 587 U.S. (2019) (Thomas, J., concurring), 12-13. 72 Gary Lawson, “The Constitutional Case Against Precedent,” 17 Harv. J.L.& Pub. Pol’y 1 (1994), at 26. 73 Id. at 30. 44 The Undergraduate Law Review at New York University Vol IV: Issue I VI. Discussion and Conclustion: Quo Warranto, not Stare Decisis Research exploring originalist methodology and jurisprudence has developed for over fifty years, and its promotion has been vastly buoyed by the appointment of such Supreme Court Justices as Antonin Scalia and Clarence Thomas. Despite increased clarity regarding the proper methodology of originalism, the doctrine of stare decisis has presented unavoidable conflict with originalism’s use when non- originalist decisions serve as foundation for well-settled precedent. While legal scholars have proposed various ways to negotiate stare decisis and originalism, a self-avowed originalist Supreme Court Justice endorsing an alternative stare decisis model—especially in light of the Trump administration’s judicial developments— appears to foretell like-minded jurists following suit, leading to profound disputes when assessing upcoming cases. Further analysis also suggested that originalism cannot only work alongside stare decisis; stare decisis cannot be considered in a vacuum—how one constructs and interprets text, in addition to how once conceives Article III constitutional authority, also informs one’s use of stare decisis. When examining Thomas’s Gamble concurrence, we observed how in several instances, he endorsed Caleb Nelson’s range-of-indeterminacy model. Nelson’s model—analyzing the original interpretive methods of Framing and antebellum jurists—the originalist rules of construction were built into Nelson’s accommodation to set forth a concrete range of indeterminacy. In Thomas’s case, assuming Maggs’s original meaning hypothesis is correct, he used the commonalities between original intent, understanding, and public meaning as his boundaries. If a result fell outside the possibilities derived from these three approaches, Thomas argued, the Supreme Court should render them “demonstrably erroneous” and overrule them accordingly. In addition, Thomas’s incorporation of Lawson’s understanding of Article III not only prioritizes Constitutional supremacy, but also includes the place of stare decisis among those lesser sources, separate and apart from the Constitution’s plain text. For Thomas, the Constitution is the ultimate stare decisis—beyond that, even: “Instead of saying stare decisis, we should say quo warranto—by what authority?”74 Indeed, The briefly contextualizes the Latin phrase’s significance:

It was the name of a prerogative used by English kings to cause havoc among their enemies. Kings Charles II and James II used quo warranto writs to question the charters of ancient cities. When the cities could not prove the right to exist before the king’s judges, they were forced to request a new charter from the monarch—one that was inevitably more favorable to the king.75

74 Myron Magnet, Clarence Thomas and the Lost Constitution (New York: , 2019), at 62. 75 Kyle Sammin, “Chaos Theory,” The Washington Examiner (July 2019). Fall 2020 By What Authority 45 By analogizing English royal authority to the U.S. Constitution’s authority and ancient city charters to stare decisis doctrine, one may understand the extent to which Clarence Thomas emphasized a jurist’s obligation not to merely rubber- stamp precedents without thorough investigation. For Thomas, this means to “think things through constantly, to re-examine ourselves, to go back over turf we’ve already plowed, [and] to torment yourself to make sure you’re right,”76 scrutinizing the ultimate authority for a decision aside from its ad nauseum quotation. Applying Nelson’s model through his own legal acumen, Clarence Thomas has created a stare decisis doctrine compatible with originalism whose historical faithfulness— carefully crafted over twenty-eight years and counting—yields a worthy jurisprudential doctrine.

76 Magnet, supra note 74, at 62.