Monday, February 24, 2020

Justice Thomas: "'it is never too late to 'surrende[r] former views to a better considered position.'"

By Josh Blackman - February 24, 2020 at 10:19AM

It is tough to admit you're wrong. Often, people recognize their errors, but will twist and turn facts in an attempt to reconcile past and present positions. Justice Thomas does not fall in that category.

Today the Supreme Court issued a lengthy orders list. In two opinions, Justice Thomas willingly disagreed with his previous positions.

First, in Baldwin v. United States, Justice Thomas called on the Court to reconsider Brand X, an opinion he wrote in 2005:

Although I authored Brand X, "it is never too late to 'surrende[r] former views to a better considered position.'" South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (THOMAS, J., concurring) (slip op., at 1) (quoting McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring)). Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. Because I would revisit Brand X, I respectfully dissent from the denial of certiorari.

Second, in Arizona v. United States, Justice Thomas questioned his prior decision in Wyoming v. Oklahoma (1992). In that case, he concluded that the Supreme Court has discretion to deny original jurisdiction cases involving two states. Today, Thomas wrote:

Although I have applied this Court's precedents in the past, see Wyoming v. Oklahoma, 502 U. S. 437, 474, n. (1992) (dissenting opinion), I have since come to questionthose decisions, see Nebraska, supra, at ___ (dissentingopinion) (slip op., at 3). Arizona invites us to reconsider our discretionary approach, and I would do so.

Thomas previously articulated this view in Nebraska v. Colorado (2016). (I summarized this issue in a 2019 tweet thread.)

Kudos to Thomas for his willingness to reconsider his own errors.


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