As the October 2018 Term is nearing it’s conclusion, we are about to hit a string of big news days from the U.S. Supreme Court. (There are twenty cases to go with definite opinion days on this Thursday and one week from today and likely two or three more days between next Tuesday and next Friday.) All four cases today have some legal significance for the issues that impact this website.
The least significant of the decisions came in Manhattan Community Access Corp. vs. Halleck and Virginia Uranium Inc. vs. Warren. Halleck was a First Amendment case involving whether a private company running a community access channel on cable TV was a state actor such that any rules that the company set up for who could get access had to comply with the First Amendment. In a 5-4 opinion written by Justice Kavanaugh that followed the conservative-liberal split, the Supreme Court found that the company was not a state actor. So the justice most likely to have grown up watching Wayne’s World (a skit about a cable access show) ruled that the company could have denied access to potential programming. Virginia Uranium was a weird 3-3-3 split (officially written by Justice Gorsuch) in which the majority found that the federal law governing uranium processing did not preempt a state law governing uranium mining.
In a case that would normally be very significant for this site, the Supreme Court found a way to avoid addressing the merits in a racial gerrymandering case. In a 5-4 opinion written by Justice Ginsburg in which Justice Thomas and Justice Gorsuch joined the majority opinion and Justice Breyer joined the dissent, the Supreme Court in Virginia House of Delegates vs. Bethune found that one house of a state legislature did not have the right to appeal a trial court decision rejecting district lines when the rest of state government declined to continue the fight. In reality, with the primary for Virginia’s districts having just occurred under the new lines and redistricting barely two years away, this decision is more of a punt of the underlying issues to the next cycle.
The big opinion of the day, however, was not a majority opinion. It was a one Justice concurring opinion. In Gamble vs. United States, the United States Supreme Court was being asked to reconsider the “dual sovereign” doctrine which permits two states or a state and federal government to proceed with two criminal cases based on the same underlying conduct under circumstances that would violate the Double Jeopardy Clause if brought by one state. While there is much criticism of this doctrine, it has been followed for at least fifty years if not longer. By a 7-2 majority, the Supreme Court found that the doctrine was based on sound constitutional interpretation. The more interesting debate, however, concerned when the Supreme Court should overrule a prior decision. Justice Alito’s majority opinion included the standard that the Supreme Court has recently claimed to apply when considering whether to overrule a prior decision — requiring a showing that the prior decision was not merely wrong but that there is a good reason beyond that wrongness to overturn that decision.
Justice Thomas, however, wrote separately to explain why the Supreme Court should not be bound by its prior decisions. His position stripped to its bare bones is that prior decisions are sort of when it is unclear what the right result should be. However, if the majority of the Supreme Court believes that a prior decision was wrong, the Supreme Court should simply disregard that prior decision.
To be fair to Justice Thomas, many legal systems based on the Napoleonic Code take that position. A decision by a court interpreting a statute in those countries is not binding on future courts who must independently apply that statute to the facts in a given case. In the United States, however, the tradition in interpreting statutes and constitutions has been to defer to the legislature to fix mistakes in statutes and constitutional texts and to follow prior rulings until such changes have been made, barring unusual circumstances (with a little less reliance on prior decision if the issue involves a constitutional text).
In recent years, it has become common during Supreme Court nomination hearings to have the nominee asked what prior decisions count as settled law or super precedents. Under the view put forth by Justice Thomas, there are no “settled” issues of constitutional law or super precedents which should not be set aside. Instead, there are right results and wrong results with judges having no obligation to accept and follow results that they personally believe to be wrong.
While Justice Thomas is only one member of the Supreme Court, his views (if adopted by the majority) would substantially change the stakes for every future vacancy on the Supreme Court. Effectively, rather than needing to amend the Constitution to overcome an adverse ruling, an interest group would only need to get five appointees who believed that the prior decision was wrong. Such an approach would require even more vigilance in every presidential and senate election to assure that our rights remain protected.
We will see over the next ten days what precedents, if any, are going to fall this term. But the big one — Roe and Casey — is going to be on the agenda soon. November 2020 may be our last chance to save the Constitution from the hard right of the Republican Party.
