The last dissent of Thurgood Marshall: the Rule of Law vs. the transitory Edicts of 5-4 Court majorities – by New Deal democrat Daniel Kiel at the TPM Cafe, on the supreme differences between Clarence Thomas and his predecessor, Thurgood Marshall, writes: “Thurgood Marshall, … in his final opinion before retiring after a quarter century on the court, [ ]warned that his fellow justices’ growing appetite to revisit – and reverse – prior decisions would ultimately ‘squander the authority and legitimacy of this Court….’” This criticism has never seemed more on point than in the aftermath of Dobbs, as Red State Legislatures and Trumpy lower court judges swing for the fences to invite the obliteration of existing precedents. Marshall’s
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The last dissent of Thurgood Marshall: the Rule of Law vs. the transitory Edicts of 5-4 Court majorities
– by New Deal democrat
Daniel Kiel at the TPM Cafe, on the supreme differences between Clarence Thomas and his predecessor, Thurgood Marshall, writes:
“Thurgood Marshall, … in his final opinion before retiring after a quarter century on the court, [ ]warned that his fellow justices’ growing appetite to revisit – and reverse – prior decisions would ultimately ‘squander the authority and legitimacy of this Court….’”
This criticism has never seemed more on point than in the aftermath of Dobbs, as Red State Legislatures and Trumpy lower court judges swing for the fences to invite the obliteration of existing precedents.
Marshall’s final dissent occurred in the case of Payne v. Tennessee, a case that involved the scope of victim impact statements and testimony in the sentencing portion of capital murder trials. A badly splintered Court in that case overruled two previous 5 to 4 rulings that were less than 10 years old to hold expansively in favor of the prosecution. The various plurality, concurring, and dissenting opinions all dealt extensively with the doctrine of stare decisis, which simply means that decisions that have already been made should be left in place.
Stare decisis was important to Hamilton’s rebuttal to Brutus in Federalist #78, the essay that famously claimed that the judiciary would be “the least dangerous branch.” He wrote that:
“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk”
This was central to Hamilton’s argument. He believed that as time went on, the Supreme Court would be increasingly hemmed in by precedents, and thus unable to enact their ideological whims or prejudices.
Well, we know how that has worked out, don’t we?
But back to Marshall’s last dissent. The crux of his argument is:
“the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case….
“The overruling of one of this Court’s precedents ought to be a matter of great moment and consequence. Although the doctrine of stare decisis is not an ‘inexorable command,’ [citation omitted] this Court has repeatedly stressed that fidelity to precedent is fundamental to ‘a society governed by the rule of law,’ [citations omitted] ‘[I]t is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch ….’
“…. By limiting full protection of the doctrine of stare decisis to ‘cases involving property and contract rights,’ [ ] the majority sends a clear signal that essentially alldecisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination. Taking into account the majority’s additional criterion for overruling — that a case either was decided or reaffirmed by a 5-4 margin ’over spirited dissen[t],’ [ ] — the continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court.”
To be fair, where the 5 to 4 rulings are less than a decade old, Scalia’s response in his concurrence seems a much more accurate point:
“quite to the contrary, what would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.”
Point well taken. But then, Scalia goes completely off the rails:
“[S]tare decisis[ ], to the extent it rests upon anything more than administrative convenience, is merely the application to judicial precedents of a more general principle that the settled practices and expectations of a democratic society should generally not be disturbed by the courts.”
It strikes me that the expectations of a democratic society are a helluva lot bigger principle in play than mere “administrative convenience.”
But even worse, Marshall was exactly on point in his criticism of the plurality opinion by Rehnquist, for they did indeed say:
“Stare decisis is not an inexorable command; rather, it ’is a principle of policy and not a mechanical formula of adherence to the latest decision.’ [citation omitted] This is particularly true in constitutional cases, because in such cases ’correction through legislative action is practically impossible.’ [citation omitted]. Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved,”
Up until the last sentence, the majority is exactly correct. Constitutional decisions by the Supreme Court are almost impossible to reverse by democratic means. And as we have seen with the Fifteenth Amendment, even when those Herculean hurdles are cleared, a majority of the Court might simply elide them away, as Roberts did in Shelby County.
But seriously, the reliance of a democratic society on settled precedents of the Court is at its peak in *property or contract cases*??? How one drafts a contract or a title deed is more important than who one can marry, who one can be romantic with, what one can do with their own body??? This is simply breathtaking in its fundamental ignorance.
To wit: the American public should not have to draft new Constitutional Amendments and get them passed by 2/3’s of both Houses of Congress and 3/4’s of all States, in order to protect civil rights that have been upheld by Supreme Court decisions and been in effect for decades.
Simply put, the rule by an ever-shifting 5 to 4 majority on the Supreme Court is not by any means the Rule of Law. Marshall was spot on in his last dissent that Edicts by shifting majorities on the Supreme Court have indeed “squandered its authority and legitimacy.”