Republican lawmakers have been trying to get the marriage equality ruling back in front of the Supreme Court, and now they’ve been given a clear signal from a justice that there is some internal support of their efforts.
Justice Clarence Thomas, who, along with three of his colleagues, voted against Obergefell v. Hodges four years ago, wrote in a concurring opinion regarding a double jeopardy case that he believes the high court should revisit its use of the “stare decisis” doctrine, which gives weight to precedent set by previous rulings and only overturning them if there is compelling reason to do so.
In making his case, Thomas cited Justice John Roberts’ dissenting opinion in that landmark decision making same-sex marriage legal nationwide.
“In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law,” wrote Thomas.
He then quoted Roberts’ Obergefell dissent, saying, “It is always ’tempting for judges to confuse our own preferences with the requirements of the law.'”
Thomas continued, saying the Supreme Court’s stare decisis doctrine “exacerbates that temptation” by giving the veneer of respectability to “our continued application of demonstrably incorrect precedents.”
“By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises ’force’ and ’will,’ two attributes the People did not give it.”
The plaintiff in that case, Jim Obergefell, has said he is worried that the court, which has become more conservative with the addition of Justices Neil Gorsuch and Brett Kavanaugh, could overturn the marriage equality ruling.
Thomas’ opinion has also set off worries Roe v. Wade could be overturned; the ruling which legalized abortion nationwide. Republicans in states like Alabama, Mississippi, and Georgia have been passing strict anti-abortion laws, likely as a means to get the issue back in front of the Supreme Court.