The radical Justice Thomas

Justice Clarence Thomas recently became the second-longest serving justice on the U.S. Supreme Court, a tenure marked by a distinctive and often solitary judicial philosophy. Central to his jurisprudence is a "radical" approach to *stare decisis*, advocating for the overturning of precedents he deems "demonstrably erroneous" or inconsistent with the Constitution's original meaning. This stance, rooted in originalism and textualism, has profound implications for established areas of law, including substantive due process, the administrative state, and fundamental rights. His influence, once an outlier, is increasingly shaping the Court's conservative majority, signaling a potential era of significant legal re-evaluation.

On May 7, 2026, Justice Clarence Thomas achieved a remarkable milestone, becoming the second-longest serving justice in the history of the United States Supreme Court, surpassing Justice Stephen Field. Should he remain on the bench for two more years, until May 2028, he is poised to become the longest-serving justice, exceeding the record held by Justice William O. Douglas. While his longevity is notable, it is his consistent and often solitary judicial philosophy, particularly his approach to legal precedent, that truly defines his tenure and portends significant shifts in American jurisprudence.

Justice Thomas is widely recognized for his unwavering commitment to originalism and textualism, which underpins his willingness to challenge and overturn long-established precedents. Unlike many of his colleagues who view *stare decisis* as a strong, albeit not absolute, command, Thomas has openly articulated a view that demonstrably erroneous precedents, especially in constitutional interpretation, should not be followed simply for the sake of stability. This "radical" stance, as some characterize it, suggests a judiciary less constrained by past rulings and more focused on what he perceives as the Constitution's original meaning.

This article will explore Justice Thomas's distinctive jurisprudence concerning *stare decisis*, examining its theoretical underpinnings and its practical implications across various domains of law. By analyzing his opinions and public statements, we will delve into how his philosophy challenges conventional judicial restraint and what this means for the future stability and interpretation of constitutional and statutory law in the United States.

The doctrine of *stare decisis*, Latin for "to stand by things decided," is a cornerstone of the American legal system. It mandates that courts adhere to precedent in their decision-making, promoting the evenhanded, predictable, and consistent development of legal principles, fostering reliance on judicial decisions, and contributing to the actual and perceived integrity of the judicial process. This doctrine operates both horizontally, where a court adheres to its own precedent, and vertically, where lower courts follow the rulings of higher courts.

However, *stare decisis* is not an "inexorable command." The Supreme Court has acknowledged that it may depart from precedent when prior decisions are "unworkable or are badly reasoned," particularly in constitutional cases. Historically, the Court has considered factors such as the workability of the rule, the antiquity of the precedent, reliance interests, and whether the decision was well-reasoned before overturning a prior ruling. This traditional approach typically requires a "special reason over and above the belief that a prior case was wrongly decided" to justify overruling precedent.

Justice Thomas, however, posits a more stringent view. His judicial philosophy is deeply rooted in originalism, the belief that the Constitution should be interpreted according to its original public meaning at the time of its adoption. From this perspective, he argues that the Court should not follow demonstrably erroneous precedent, especially when it deviates from the Constitution's text and original understanding. He views the prevailing multifactor analysis for *stare decisis* as a judicial invention that allows courts to prioritize policy over constitutional fidelity, asserting that if a precedent requires violating the text of statutes and the original meaning of the Constitution, it should have no force.

Justice Thomas's approach to *stare decisis* is perhaps most explicitly articulated in his concurring opinion in *Gamble v. United States*, 587 U.S. ___ (2019). There, he argued that the Court's existing *stare decisis* doctrine, which balances various factors to decide whether to overrule precedent, is fundamentally flawed in a federal system. He contended that such an approach, while perhaps suitable for a common-law system, is inappropriate for a system governed by a written Constitution, where the ultimate authority rests with the text and original meaning.

This philosophy has led him to advocate for a wholesale re-evaluation of numerous constitutional doctrines. A prime example is his consistent critique of "substantive due process," a doctrine he views as lacking textual support in the Fourteenth Amendment. In his concurring opinion in *Dobbs v. Jackson Women's Health Organization*, 597 U.S. ___ (2022), which overturned *Roe v. Wade*, he explicitly called for the Court to "reconsider all of this Court's substantive due process precedents," including *Griswold v. Connecticut* (right to contraception), *Lawrence v. Texas* (right to same-sex intimacy), and *Obergefell v. Hodges* (right to same-sex marriage), arguing they were "demonstrably erroneous." While the majority in *Dobbs* attempted to limit its ruling to abortion, Thomas's concurrence signaled a broader ambition to dismantle what he considers unmoored judicial creations.

Beyond substantive due process, Justice Thomas has been a leading voice in challenging the modern administrative state. He views the delegation of legislative power to executive agencies and judicial deference to agency interpretations as fundamentally incompatible with the Constitution's separation of powers. In cases like *Department of Transportation v. Association of American Railroads*, 575 U.S. 43 (2015), and his later reflections on *National Cable & Telecommunications Assn. v. Brand X Internet Services*, 545 U.S. 967 (2005), he has argued that such practices erode the judicial obligation to interpret the law independently and concentrate power in an unaccountable administrative apparatus. His jurisprudence in this area seeks to restore what he perceives as the original constitutional design, where Congress makes laws, and courts interpret them, without undue deference to the executive branch.

For much of his tenure, Justice Thomas's views on *stare decisis* and his calls to revisit long-settled precedents were often expressed in solitary concurrences or dissents. However, with the current composition of the Supreme Court, his once-outlier positions are gaining significant traction. The conservative supermajority has shown a greater willingness to re-examine and overturn precedents, aligning more closely with Thomas's long-held philosophy that precedent is not "the gospel" and should not be followed if it is "totally stupid" or wrongly decided. This shift suggests that his jurisprudence, once considered radical, is now increasingly influential, potentially leading to further significant changes in American law.

Justice Clarence Thomas's enduring presence on the Supreme Court, coupled with his consistent and deeply held judicial philosophy, presents a unique and evolving landscape for legal practitioners. His unwavering commitment to originalism and his willingness to challenge and overturn precedents he deems "demonstrably erroneous" signifies a departure from traditional judicial restraint and a potential for profound legal upheaval.

For attorneys, this means that arguments previously considered settled law, particularly those rooted in substantive due process or broad interpretations of federal power, may now be open to re-litigation and re-evaluation. Practitioners must be prepared to engage with arguments grounded in original meaning, constitutional text, and the historical understanding of legal principles, even when challenging decades-old precedents. The Court's current trajectory, heavily influenced by Justice Thomas's long-standing views, necessitates a vigilant awareness of the foundational constitutional debates that underpin various legal doctrines. As Justice Thomas continues to shape the Court's jurisprudence, the legal profession must adapt to an environment where the stability of precedent is increasingly subject to rigorous, originalist scrutiny, potentially leading to a significant reshaping of American law.