Wednesday, February 20, 2019

In-Chambers Stare Decisis

Mark Tushnet

Law clerks are routinely instructed (by their predecessors, their judges, or some sort of in-chambers manual) that it's imperative to ensure that the opinions they work on be consistent with those written under the judge's name in prior years. There's a weaker imperative to ensure that a judge's written opinions be consistent with the votes the judge cast in prior cases -- weaker, because there's some value in not insisting at every opportunity on a judge's distinctive views.
Justice Thomas's opinions this week illustrate -- and raise questions about -- the practice of in-chambers stare decisis. His separate opinion in Timbs insists, as did his opinion in McDonald, that the textual location for protection of fundamental rights against violation by state governments lies in the Fourteenth Amendment's "privileges or immunities" clause. That's a good example of in-chambers stare decisis: Having written separately in McDonald, Justice Thomas has some obligation to maintain his distinctive position (or explain why he's abandoning it).
What about his concurrence in the denial of certiorari in McKee v. Cosby, in which he criticized the rule of New York Times v. Sullivan as deeply inconsistent with the original understanding of the First Amendment?
Here the problem, if any, is more subtle. The easy version is that Justice Thomas joined the opinion in Snyder v. Phelps, imposing constitutional limits on state law rules for imposing liability for the intentional inflection of emotional distress. What distinguishes the IIED tort from the libel tort? Maybe the answer is that the IIED tort didn't exist, under that name, in 1791 or 1868 (though proponents of the tort do refer to precursors dating back a ways) -- but in-chambers stare decisis suggests that Justice Thomas ought to offer some explanation.
A similar problem has been widely noted in connection with Justice Thomas's votes in campaign finance cases. The Court has only gestured in the direction of defending its approach to campaign finance law in originalist terms -- in Citizens United by adverting to a narrow point about "exempting" corporations from the coverage provided by otherwise available First Amendment rules, and in other cases by invoking fundamental principles located in 1791 that have crystallized (by judicial construction) into more specific rules applicable to campaign finance regulation. Again, in-chambers stare decisis suggests that at some point Justice Thomas should offer a more extended explanation of how his position on Times v. Sullivan is consistent with his position in campaign finance cases.
This isn't to say that no such explanation could possibly be offered -- nor is it to say that, on any particular occasion, an explanation should have been offered. But in-chambers stare decisis does pretty strongly suggest that at some point we ought to get an explanation of how Justice
Thomas''s position in First Amendment cases as a group are consistent with the originalism he articulated in Timbs, McDonald, and McKee. Otherwise the hermeneutic of suspicion will kick in, and we'll see people saying, not without reason, that as far as Justice Thomas has said, the best explanation of his positions is that they are driven by outcomes rather than by originalism.

Older Posts
Newer Posts