Even by Supreme Court standards, this development takes a minute to wrap your head around.
In a dissent to the high court’s decision Monday not to hear a tax case, Supreme Court Justice Clarence Thomas managed to cite an opinion that he wrote while making the case for why the tribunal should overturn a precedent he authored.
The case the court turned back, Baldwin v. United States, involves a couple who sued the IRS to recover their tax return, claiming that the agency changed its rules after they mailed their forms and after the federal courts interpreted a rule that applied to the couple’s return. The case would rest on the controversial Chevron deference, a doctrine holding that the federal courts will “adopt an agency’s interpretation of an ambiguous statute if that interpretation … is ‘reasonable'” and a case called Brand X, the majority opinion for which Thomas authored.
Brand X established that courts must accept a federal agency’s interpretation of a law even if the court has already ruled on that law, saying that such a stance “follows from Chevron.” Thomas wrote Monday that he is no longer so sure he was right in Brand X or the court itself was right in Chevron.
Justice Clarence Thomas has been on the Supreme Court since 1991.
“Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position,'” Thomas wrote in his Monday dissent, quoting himself from a 2018 opinion in South Dakota v. Wayfair, Inc.
Thomas has recently been quite vocal in advocating for the court to overturn a variety of precedents, saying in one opinion last year that when “faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”
Though the Supreme Court has always had the power to overrule itself, it’s largely followed its past rulings, consistent with a legal principle called stare decisis, in order to maintain consistency in the law. Thomas’ drum-banging against following “demonstrably erroneous” precedent has worried many liberals that he is priming himself and other conservative justices to deal a death blow to the 1973 precedent in Roe v. Wade should a major abortion case come before the Supreme court in the near future.
Thomas’ volley against Chevron is also sure to please conservative court watchers, who see the case as a blanket empowerment of the administrative state that upsets the balance of power between the three branches of the federal government.
For example, the conservative Heritage Foundation released a report in 2018 saying that Chevron “raises major constitutional concerns, is inconsistent with the Administrative Procedure Act, and has little basis in American legal history.”
Some other critics of Chevron include former Justice Anthony Kennedy, his replacement Justice Brett Kavanaugh and Justice Neil Gorsuch, who wrote in his book that, “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.”
The Supreme Court does not release the results of votes on whether or not to hear a case, but if four of the nine justices vote to hear a case, the court will take it. That means no more than two other justices could have voted with Thomas to hear Baldwin v. United States.