Clarence Thomas Urges Overturning SCOTUS Decision Written By Clarence Thomas

It's enough to make your head explode.

“This is what you think now.” (Photo by Chip Somodevilla/Getty Images)

Conservatives must be happy that the little fragments of judicial independence Supreme Court Justice Clarence Thomas has seem to be withering away.

The right wing has long had a hard-on for Chevron deference — the foundation of administrative law established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. which grants deference to government agencies’ statutory interpretations. Retired Justice Anthony Kennedy has long been opposed to Chevron, and Justice Neil Gorsuch wrote of the case, saying, “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.” And the Heritage Foundation — an organization so… we wouldn’t want to offer the opinion that it’s “racist” so we’ll just say “founded in an extension of Paul Wyerich’s efforts to defend Bob Jones University’s racial segregation policies” and that “actively argued against sanctioning South Africa’s apartheid government” that it named itself “Heritage” about white people’s history — said Chevron “raises major constitutional concerns, is inconsistent with the Administrative Procedure Act, and has little basis in American legal history.” But despite this, Thomas has been in favor of the case that makes the administrative state go.

In the 2005 case National Cable & Telecommunications Association v. Brand X Internet Services, Thomas wrote for the 6-3 majority in defense of Chevron. Brand X established that, under Chevron statutory interpretations by administrative agencies outweigh the precedents of appeals courts unless the court found the statute was “unambiguous.” But now Thomas thinks his Brand X logic was all wrong.

On Monday, the Supreme Court denied cert in Baldwin v. United States, which, you know, is something that happens all the time and is generally unremarkable. Thomas flipped the script in Baldwin — which relies on Chevron/Brand X — writing a dissent to the denial of cert, because he wants to tear it all down.

And, because of course, Thomas cites himself for the proposition that he should be able to overturn his own decision:

“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.

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That’s one helluva stare decisis snake eating itself.

So if we are left to parse Thomas’s new judicial “philosophy,” it’s that we should trust his original understanding of people who died 200 years ago despite the fact he can’t even trust his own original understanding of something HE WROTE 15 years go. Delightful.


headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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