Justice Thomas: "'it is never too late to 'surrende[r] former views to a better considered position.'"

In two opinions today, Justice Thomas disagrees with his previous positions

|The Volokh Conspiracy |

It is tough to admit you're wrong. Often, people recognize their errors, but will twist and turn facts in an attempt to reconcile past and present positions. Justice Thomas does not fall in that category.

Today the Supreme Court issued a lengthy orders list. In two opinions, Justice Thomas willingly disagreed with his previous positions.

First, in Baldwin v. United States, Justice Thomas called on the Court to reconsider Brand X, an opinion he wrote in 2005:

Although I authored Brand X, "it is never too late to 'surrende[r] former views to a better considered position.'" South Dakota v. Wayfair, Inc., 585 U. S. ___, ___ (2018) (THOMAS, J., concurring) (slip op., at 1) (quoting McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring)). Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. Because I would revisit Brand X, I respectfully dissent from the denial of certiorari.

Second, in Arizona v. United States, Justice Thomas questioned his prior decision in Wyoming v. Oklahoma (1992). In that case, he concluded that the Supreme Court has discretion to deny original jurisdiction cases involving two states. Today, Thomas wrote:

Although I have applied this Court's precedents in the past, see Wyoming v. Oklahoma, 502 U. S. 437, 474, n. (1992) (dissenting opinion), I have since come to questionthose decisions, see Nebraska, supra, at ___ (dissentingopinion) (slip op., at 3). Arizona invites us to reconsider our discretionary approach, and I would do so.

Thomas previously articulated this view in Nebraska v. Colorado (2016). (I summarized this issue in a 2019 tweet thread.)

Kudos to Thomas for his willingness to reconsider his own errors.

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  1. IANAL, and that matters for this: I have never liked stare decisis. I understand the desire for consistency and stability, but it makes it all too easy for lazy judges to punt basic issues. I’d rather everything started from the statutes themselves, and for questions of constitutionality, from the Constitution itself.

    One of the stupidities which led to the space shuttle exploding on launch was managers not realizing how compounded probabilities multiply. Same thing applies to laws: if each decision has a 99% chance of being correct, stare decisis just multiplies those out, and by then time you get to the 100th decision based on the 99th based on the 98th and so on, you are almost guaranteed no connection to the Constitution.

    Monstrosities like Jim Crow and the Commerce Clause would not have survived except for judges bowing and scraping to stare decisis.

    1. Yes, but be fair to the doctrine of stare decisis, in that consistency is a virtue in government. It’s difficult for people, and businesses, to plan even short term when nobody knows what the rules are going to be one day to the next, and know that they can change on a whim.

      1. Stare decisis provides the wrong kind of consistency. Imagine building a skyscraper by measuring from the previous floor instead of the foundation; it would topple before reaching its design height.

        Better to be consistent compared to the foundation that the previous decision.

      2. You also imply that only stare decisis provides consistency. That is a strawman. Deriving all constitutionality decisions direct from the constitution would provide far better consistency.

        The late 1800s Progressives and FDR’s New Deal led the court into radical changes, now enshrined in stare decisis and impossible to undo in any practical manner. The Framers would have recognized no consistency with what they wrote or envisaged. Is that an example of your consistency?

        1. Deriving all constitutionality decisions direct from the constitution would provide far better consistency.

          No it won’t, for much the same reason that deriving all religious decisions direct from the New Testament does not result in a set of consistent rules in Christianity.

          Indeed, if you want such consistent rules, Catholicism (which applies stare decisis) has them and Protestantism (which says “read the Bible directly”) does not.

      3. You are misusing the concept of a strawman for starters.

        So, think of a world without stare decisis. Every decision ever would be much more likely to be reversed with changes in political control, and many levels of the court system. That instability would be like a hidden “broken windows” tax where people don’t do X or Y because they have no idea what the future might bring. Think of the health care market in flux after Obamacare, or how people and the market, react to high inflation.

        Yes, bad decisions would have staying power, but like I said, consistency is itself a virtue that you’re not giving enough shrift. And what is a “bad” decision to be reversed is also in the eye of the beholder!

        What you’re really getting at, is that conservatives conserve and care about stare decisis whilst liberals don’t (as much), and are willing to overturn it more for their preferred policy agendas. That is fundamental to the nature of conservatism and liberalism.

        1. The problem here is, as you acknowledge in your last paragraph, that stare decisis isn’t generally observed. It’s observed by one side, and violated by the other. That’s why it functions less to provide stability, than as a ratchet, preserving changes in one direction, and preventing them in the other. Thus assuring net change, rather than preventing it.

          Stare decisis is, at most, a second order virtue, where the primary virtue is fidelity, not stability.

          1. Richard Epstein describes it like this (I paraphrase); a man breaks into your home and he’s trespassing, but if he lives there for decades, he becomes part owner.

            I’m not saying that the that ratchet you describe isn’t a problem. Is standing athwart history and yelling stop really effective? Sorta. But a world without stare decisis would be a problem too, perhaps even more so. This is a normative argument rather than an empirical one, admittedly. But generally speaking, the courts work now even with the squatters in our constitutional house, and change should come from the legislature anyway.

            1. “a man breaks into your home and he’s trespassing, but if he lives there for decades, he becomes part owner.”

              In practice, only if you didn’t try to evict him. Adverse possession amounts to the original owner conceding the new owner’s claim by failing to contest it for a long while. Any effort by you at evicting him would restart the clock.

              But I think this analogy tends to work: Stare decisis is a kind of adverse possession of the law: Usurp the law long enough without efforts to reverse the usurpation, and you get to keep it. By this analogy it wouldn’t be applicable to topics where the wrong rulings were continually subject to challenge, and thus not conceded to be valid.

              1. Based on your response, let me torture Epstein’s analogy a bit…the renter of the property (a liberal court) invites the person in and the landlord (conservatives) can’t/won’t do anything about it because the rental contract (orginalism and the constitution) isn’t enough to lean upon to kick the person out.

                Liberal constitutional precedent is like the movie Air Bud, where a dog plays for the basketball team…the refs when confronted about the furry intrusion say “the rules don’t say that a dog *can’t* be on the team.”

          2. stare decisis isn’t generally observed. It’s observed by one side, and violated by the other. That’s why it functions less to provide stability, than as a ratchet, preserving changes in one direction, and preventing them in the other. Thus assuring net change, rather than preventing it.

            Because conservative decisions are always clearly constitutionally correct, while liberal ones are always just policy-driven. Right, Brett?

            I don’t think you have a hope of understanding people who disagree with you, so long as you’re committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

            1. “Because conservative decisions are always clearly constitutionally correct, while liberal ones are always just policy-driven. Right, Brett?”

              That right there, now that’s a proper straw man for you Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf. Take note.

              1. It’s observed by one side, and violated by the other

                And that is the usual double standard sourced-from-Brett’s-hat that is ever offered on policy issues.
                Liberals are into stare. As well they should be even in Brett’s constant assumption of liberal bad faith, as precedent lies in places good for them.

                1. Hey, I hedged my points about liberals flaunting stare decisis by saying that liberals don’t care about it “as much”. This is empirically true. The Roberts Court rarely has overturned anything. The subject came up in this very blog a couple years ago. Here is a quote from that post:

                  “the Warren, Burger and Rehnquist Courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively. The Roberts Court, on the other hand, has only overturned an average of 1.6 precedents per term. The record on striking down laws shows a similar pattern. The Warren, Burger, and Rehnquist Courts struck down an average of 7.9, 12.5, and 8.2 laws per term, whereas the Roberts Court has only invalidated an average of 3 laws per term.”

                  I’ve also seen data that lower court conservative judges, by a statistically significant rate, will vote to uphold “liberal” decisions if they are based on stare decisis more than liberal judges. It wasn’t a huge amount, but it was there and measurable.

                  1. Which Court era overturns what is an awful metric for who keeps to stare more.

                    You need to stop taking whatever marginally germane statistic is easy to measure as being probative. That’s how we get publications as a metric of success.

                    1. See those goalposts you just moved. I do.

                      That said, you gotta better way to measure which side respects stare decisis more?

                    2. Didn’t move the goal posts – said your metrics were not probative.

                      Which Court overturned how many cases tells us nothing about which side of the aisle respects stare more.

                      I don’t have a better measure; that doesn’t mean your crappy measure is good enough to posit anything worthwhile.

                    3. I have a better measure. Restrict the analysis only to cases which directly affect the political process or political outcomes. Those are the cases which bear directly on the axis you are trying to measure—the axis of political bias.

                      Resist any temptation to include also cases with high political valence, but no direct implications for politics itself. Thus, you would include Shelby County, and exclude Roe v. Wade.

                      Doing it that way would give you a clear picture of whether or not there is any difference in reliance on stare decisis among different partisan camps. I have no idea how it might come out.

                    4. Don’t move the goalposts. Just redefine the field. We’ll all play happier.

              2. m_k,

                I was responding to Brett, who has a bad habit of refusing to believe that there is room for disagreement over constitutional issues and hence, that any decision he disagrees with was made in good faith.

                Instead there’s always an ulterior motive, a “march through the institutions,” or a leftwing conspiracy against the country, or something.

                1. The Reason comment system is meh at best.

            2. No, you’re interpreting it incorrect.

              Stare decisis is always observed by my side, which is composed of rational, logical thinkers fairly applying the law. It is never observed by the other side, which is consistently acting in bad faith and manipulating the law to achieve their preferred political outcomes.

            3. Because conservative decisions are always clearly constitutionally correct, while liberal ones are always just policy-driven. Right, Brett?

              Obviously not, but close.

              Decisions taken, competently using conservative judicial philosophy are always constitutionally (or, where appropriate, statutorily) correct. Whether they advance conservative political objectives or not.

              Decisions taken competently using liberal judicial philosophy are constitutionally (or, where appropriate, statutorily) incorrect, unless by chance they happen to arrive at the same answer as that revealed by using conservative judicial philosophy. Again, whether or not they advance liberal political objectives. Though of course the “whether or not” is redundant here, since a decision which fails to advance liberal political objectives is, by definition, inconsistent with liberal judicial philosophy.

          3. stare decisis isn’t generally observed. It’s observed by one side, and violated by the other.

            This is not true. There are plenty of hot button issues, such as the constitutionality of the death penalty, Washington v. Glucksberg, etc., where liberals observe stare decisis with respect to conservative legal decisions.

        2. Nonsense. If every verdict has to be based on the Constitution, and not on stare decisis decisions long removed from the Constitution, they can’t drift far off course before the loser complains enough for an appeal on the constitutionality of the verdict itself.

          How would changes of administration and political winds have any affect on this? Is a new President going to announce to all judges that they have to change their intrepretation of the 2nd amendment, or the commerce clause?

          And if new administrations could do this under “my” system, what kind of fantasy do you live in to think they cannot do it now? Look at all the horror of Trump appointing judges, or Hillary promising to appoint judges to overturn Citizens United. Stare decisis gives the establishment much more power than you acknowledge.

          1. They’re called judicial ‘opinions’ for a reason.

            Stare is about having the humility to acknowledge the expertise of the past is a thing that exists.

            1. It acknowledges the lie that past judgements are always perfect and never need rethinking.

              1. Which is also the arrogance that your own opinions are so sublime that they will never need rethinking and will always judged perfect by succeeding generations.

              2. It acknowledges the lie that past judgements are always perfect and never need rethinking.

                Almost nobody thinks that. They think that today’s opinions and yesterday’s opinions may both be flawed, and they mostly agree that tomorrow’s opinions may bring new facts to bear which need to be accommodated. Stare decisis is one method to collate all that thinking, while adding yet one more value to the mix—that being a measure of predictability in legal decision making.

                One further practical problem with a fundamentalist (anti-stare) approach: advocates for that point of view seldom show notable skills in fundamentalist reasoning, because they tend to exclude by preference any resort to the historical insight which that kind of analysis requires. Instead, anti-stare advocates try constantly to draw historical inferences by backward-looking legal analysis. They are insufficiently schooled in historical methods to understand that approaching the problem that way guarantees frequent historical misinterpretations.

              3. Stare can and has been overcome. You just need to explain why.

                That is part of its design.

                Your perfection arguments are strawmen, though I’m not sure you realized it.

    2. On most issues, I think most people all across the political spectrum would prefer that things started from the text itself. The problem is that the text is generally open to multiple reasonable interpretations, and the people who reach different conclusions than you do usually get there in good faith.

      I disagree with a lot of conservative jurisprudence and I do so in good faith. And I have no reason to question the good faith of most conservatives. I just have an honest difference of opinion with their basic premises.

      1. Krychek, note also, when interpreting antique texts, good faith is an insufficient standard. If you choose an unreliable method of interpretation, but don’t know you did that, all the good faith in the world will not improve your results.

        1. Agreed, though I would also point out that antique texts are inherently difficult to interpret. Anyone who thinks they know to any reasonable degrees of certainty what the framers would have said about issues they never thought about us only fooling himself.

          1. Krychek_2, you know those unreliable methods I mentioned? That one—a willingness to speculate about what some long-ago figure, “would have thought,”—is chief among them. Any time you find yourself saying, ” So-and-So would have . . . ” you are almost certainly doing it wrong. If you want to cite an example of an error in historical reasoning, no better example exists.

            Which does not quite mean it cannot be done with some reasonable assurance of accuracy, by someone with professional-grade historical knowledge, in those rare instances where a historical figure has said something exactly on point, about some long-ago circumstance that matches nearly perfectly a present-day controversy. Such instances are vanishingly rare, and professional historians willing to take the bait and make such comments are rarer still.

    3. Will stare decisis become important to you (and Justice Thomas) once there is a critical mass of favorable constitutional interpretations? Or will you just accept that a later majority of the Court will inevitably outright reject the decisions you think are correct once they are unbounded by the principle?

    4. Kelo is a good example – probably correct based on Stare decisis

      Total wrong based on the constitution.

      Thomas has good analysis in his McDonald concurring opinion on how stare decisis will cause the morphing of the phrase “all laws ” in 14A to become “only laws deemed to be fundamental” are worthy of incorporation.

    5. Stare decisis is at the very center of our legal system. We inherited it from the British and it is important to note that it isn’t just a legal rule for statutory and constitutional provisions. It’s also how the common law gets promulgated.

      The basic reasons for stare decisis are:

      1. Stare decisis forces judicial humility. The judges who thought they knew everything and never had to listen to their colleagues or to the voices of the past have almost always been both (1) not very good judges and (2) people who thought they were a lot smarter than they are.

      The simple exercise of having to follow precedents without a very good reason for overturning them forces people to consider the reasoning and decisions of cases they dislike, which requires a bit of humility that no judge is God’s gift to human wisdom. It’s just a wonderful check on the judicial ego.

      2. Stare decisis uses the wisdom of crowds. Instead of having one person, or 5 people, deciding an issue, you have the work product of all the different judges who have heard cases over the years on the subject matter. You get better results that way.

      3. Stare decisis allows doctrine to iterate. Legal doctrine is a lot like software engineering- it’s an iterative process where bugs are discovered and corrected over time. Stare decisis allows courts to try stuff out, extend doctrines, limit them where necessary, and see how the doctrines interact with various fact patterns.

      4. Stare decisis acts as a political check on judging. Indeed, it actually does the thing that originalists claim originalism does, but originalism doesn’t do it. Stare decisis forces judges to follow decisions they politically disagree with.

      5. Stare decisis ensures that changes in court personnel don’t upend the legal decision. Lawyers, judges, and clients all rely on the law being what the courts have said it is. Obviously, sometimes precedents will be overturned, but you want that to happen only where it is absolutely necessary, because people order their lives based on what they are told the law is.

      1. It raises judicial decisions over the Constitution. The English had no written Constitution, we do. The text must control over the interpretation.

        1. The Constitution EXPLICITLY references the common law system (7th Amendment) and also has a strong implied reference (the “judicial power” in Article III).

          In other words, the Constitution REQUIRES this, and using your method of ignoring precedent would flagrantly disobey the Constitution.

  2. I wish I could revisit Brand X. They were my ISP for 10 years, and they sucked hard.

  3. It is never too late to become more conservative

  4. I see no danger that Prof. Blackman will be on the Ginny Thomas-Richard Grenell-Johnny McEntee naughty list.

    He might asphyxiate if Justice Thomas adjusts a seated position, though.

    1. Normally, you’re a waste of time, but wtf are you talking about here? I’m curious.

      1. https://www.independent.co.uk/news/world/americas/us-politics/ginni-thomas-supreme-court-trump-clarence-wife-justice-groundswell-a9354126.html

        Purges of those without sufficient personal loyalty to a particular leader are normal in a healthy republic!

        1. Okay, thanks for the link. Now the inside joke (such as it was) makes sense.

          And that said, neither is the level of resistance inside the government that Trump has been receiving been perfectly normal in a healthy republic either. Politicians do policy, and civil servants do implementation, that’s Public Administration 101. And don’t do your usual schick of pretending it’s not happening either.

          Not that would I describe a loyalty list compiled by a supporter as a “purge”.

          1. How would you describe Grenell’s and McEntee’s conduct, or their direction from the president, you bigoted rube?

            1. The first image I get when I click on the link of a video of that proven perjurer to Congress, Brennen, so it wasn’t an encouraging start. But I gave the Independent (and you sadly) at least enough credit to skim the article and like Bob points out below, it’s all conjecture and ephemeral scare monger reporting that memos with lists of (lets put it this way) #resistance members inside the administration.

              Even if it’s proven that such memos did get provided to Trump, so what? I don’t see any mass firings. Presidents deserve political appointees loyal to the party and him, but the lower staff stayers in place. That’s the trade-off from 19th century civil service reform. Did you get upset, when, for example, Clinton fired 93 federal prosecutors in one day?

              1. Presidents deserve political appointees loyal to the party and him

                No, they deserve the best people for the job. Personal or partisan loyalty should explicitly be absent from the calculus.

                I know Trump extols personal loyalty, but to turn that into a norm is some dangerous views to press.

                1. Well, how nice of you to decide what presidents do and don’t deserve. Who made you emperor? The rest of us voters have a say, and we say, regardless of party, that presidents deserve political appointees loyal to him and the party. I’ll add that they should resign if they disagree with a policy, and fired if they don’t enact it. This has been the D.C. norm forever. Let’s talk about MacArthur or the Saturday Night Massacre, eh?

                  1. You’re mixing up legal and good again, m_k.

                    Funny how Trump folks keep running behind ‘it’s not against the constitution’ in arguments about what’s acceptable.

                    1. I ain’t mixing up shit. You’re throwing out an accumulated century or more of the political norm about resigning if you won’t follow policy from elected officials, or being fired if you won’t, because you want to say Trump is doing things wrong, when what he is doing is along a well worn groove.

                      I mean, seriously, Woodrow Wilson wrote about the politics-administration dichotomy back in 1887! Politicians choose policy, administrators implement it, or resign, or get fired. It’s only a blurry line when we administrators get to choose “how” to implement policy, but before that it’s a stark black and white in a constitutional republic.

                      It’s kinda sad really. I’m not sure you’re even aware you’re doing it, but your fascist tendencies are showing.

                    2. No m_k, that’s not at all true. It’s not been the norm to be fired for not being personally loyal to the President.

                      See, e.g. Team of Rivals. Or the Kennedy Best and Brightest, or any of the more recent administrations.

                      Your slight of hand conflating administering policies the President wants and personal loyalty is noted, but I’ll stick to my original thesis, thanks.

                    3. You know what’s fascist? Literal purges for all who haven’t evinced sufficient loyalty to the Leader. Not to his agenda – to the person himself. Not to testify about what he did if it makes him look bad.

                      So maybe be a bit lighter on calling me an unknowing fascist, jackass.

                    4. Where is the “literal purge” you silly goose.

                    5. You’re moving the goalposts…again, by creating a new standard for what a president’s cabinet should look like, based on a few examples.

                      Some presidents are more comfortable with a brain trust of rivals, like Lincoln, some aren’t. Point is, they don’t have too based on over a century of accumulated norms and wisdom. Note, I see you don’t want to talk about Truman firing MacArthur, or Clinton firing 93 prosecutors, or the Saturday Night Massacre…you know actual examples from history.

                    6. Those are not new goalposts.

                      Your are the new goal posts.

                      McCarthur was fried for disobeying his CiC, not for being personally disloyal to Truman.

                      Jesus, look at what you are defending – it’s naked cult of personality authorianism!

                      And you have either rationalized it as normal President behavior or haven’t and are lying in service of fascism.

                    7. kalak, you are still conflating personal loyalty to the person of the president and willingness to enact policy. He keeps pointing that distinction out to you, and you keep ignoring it and making snarky comments instead.

                      And even if Trump isn’t the first president to fire competent people simply because they showed insufficient loyalty to him, that doesn’t make the action admirable or even acceptable. The past century has produced some terrible presidents, why should that be a defense of the actions of the current president?

                  2. Mad, well done. It takes some special brand of chutzpah to rake Sarcastro over the coals for daring to express an opinion in exactly the same way you expressed yours just 23 minutes earlier.

                    1. I’ll take your bait, and ask how so? Sarc is scaremongering, and I’m describing empirical reality.

                    2. mad_kalak: Presidents deserve political appointees loyal to the party and him
                      sarcastro: they deserve the best people for the job
                      mad_kalak: how nice of you to decide what presidents do and don’t deserve. who made you emperor?


                    3. Sarc is scaremongering, and I’m describing empirical reality.

                      I don’t think so. I think that historically the norm of resigning in protest has been honored mostly in the breach. Which at least partly explains why the threat of doing it remains a dramatic and effective tactic for influencing and maybe constraining the behavior of a leader.

                      Also, the question of what presidents deserve from congressionally confirmed officials cannot properly be disentangled from the question of what the public deserves from them. Any suggestion that it is only about the president kind of ignores the point of the confirmation process.

                    4. Voice…you don’t think that such qualifications can be mutually exclusive, that is, a person can be the best for the job and loyal to the man to selected them? Frankly, the best one for the job does what the boss tells him to do, provided it’s not illegal or unconstitutional.

                      Also, I *am* describing empirical reality, the historical norm, while Sarc is describing his theoretical ideal. That’s his entire problem. He want angels to govern men, which is why he’s so silly in this whole debate.

                    5. And there again you continue to ignore the distinction between loyalty to the man and willingness to implement the man’s policies. Instead of answering that key distinction, you construct straw men and argue against that. As usual.

                2. Sacastro you are correct – “No, they deserve the best people for the job. Personal or partisan loyalty should explicitly be absent from the calculus.”

                  partisan disloyalty should also be explicitly absent. That is why those individuals are being terminated – as they should be.

                  1. Partisan disloyalty?! Party before country, eh?

                    1. “Partisan disloyalty?! Party before country, eh”

                      Again you are correct –
                      Party before country got us:
                      A pro Iranian nuclear deal along with a Billion $.
                      A pro russian uraniam deal
                      A pro corruption deal with Ukraine by firing a prosecutor among other corruption
                      A free channel to spying via the unsecured server,
                      Just to name a few

                      Yes you are correct country before party loyalty is the correct path

                    2. So party before country because you hate Obama’s policies.

              2. What if the loyalty conflicts with doing a good job?

                Apparently Trump doesn’t want a DNI who will tell him what he doesn’t want to hear, or prosecutors who refuse to take his orders about their cases.

                1. If they don’t want to do the job, they resign. Such resignations are usually followed up by a Sunday show and much moral preening and if the person makes the right denunciations, a job at a nonprofit from a well connected wealthy donor.

                  1. That may solve the problem for the individual, but not for the country.

                    If “loyalty” implies doing a bad job you’re going to end up, sooner or later, probably sooner, with someone who’s going to do a bad job.

                    1. We are all just one cog in a machine. One person doing the right, or wrong thing, can have a big impact. And publicly saying “I will resign before I do X” does something for the country, in that it may change a president’s behavior (for example Trump didn’t rashly pull out of Syria due to threats like this) and it leaves the ultimate decision up to the voters.

                    2. That may solve the problem for the individual, but not for the country.

                      That gets sorted out by the electorate, and not one ‘resister’ – at the ballot box.

                      I see this differently. The POTUS is entitled to pick his own team. That is why I had no issue with POTUS Trump reassigning Lt. Col. Vindeman. Vindeman was a military bureaucrat who was no longer trusted by the POTUS (rightly or wrongly) and was removed from the team. This kind of thing happens all the time in the corporate world. It sucks, but it is reality.

                      The POTUS decides policy. This is the bottom line. They got elected. If a bureaucrat cannot carry out his policy in good conscience, then immediately seek reassignment or leave government service. There is no middle ground there. Carry out the policy, or transfer, or be terminated for insubordination.

                      Finally, what that bureaucrat may not do is impede the policy set forth by the POTUS. We have seen way too much of this lately and it is wrong. Aggrieved parties use the judicial branch to address deficiencies in policies.

                    3. I’ll bet you similarly had no problem with the frog-marching of Lt. Vindman’s brother, you sycophantic, half-educated bigot.

                      Or the dumping of Andrew Hallman.

                      Or the demonization of the jury foreman, and the prosecutors, and the judge associated with the conviction of Roger Stone, the criminal.

                      This is why your side has lost, and will continue to lose, the culture war to your betters.

        2. All unnamed sources. Jeez, you’ll fall for anything won’t you.

          Assuming its accurate, those on the “hit lists” are all political, policy appointments. It used to be considered quire normal for presidents to have like minded people in policy positions. But OrangeManBad!

          1. Jeez, you’ll fall for anything won’t you.

            Says the loyal Trumpist.

          2. Yes, and the best part is many of the folks on the lists are people hired and appointed by the Trump administration.

            1. Mistakes happen, people lie and change their minds. Shocker!

              On a more serious note, there’s a smaller pool to draw from of conservatives willing to work in government.

              1. Well that’s a self-imposed problem isn’t it? Wouldn’t there be more willing to work there if there was less conservative rhetoric attacking the fundamental premise of most of government? Or occasionally the scientific or social scientific foundation foundations of governmental programs? Or possibly, an empathy gap?

                I mean if you think that modern environmental science is wrong, that public education is bad, that markets always lead to perfect results, that institutional racism doesn’t exist, and don’t feel particularly bad about the poor and sick you wouldn’t work in government. Unless you can be in a position to destroy it.

                1. Your second paragraph is full of straw-men and red herrings. Get back to me on those issues when those issues actually come up.

                  As for your first paragraph, you unintentionally made a point that I would like to expand on. Let me ask you what is the fundamental premise of government?

                  1. Don’t they? If you don’t believe in climate change you’re not likely to work for EPA. If you don’t think institutional racism exists you’re not likely to work for the Civil Right Division or HUD. If you don’t believe in public education, why would you work at the Department of Education. Etc.

                    Government is about solving collective action problems while guaranteeing the rights of the individual. What constitute collective action problems and the rights of the individual is up for debate.

                    1. Again, let’s debate a policy when that policy comes up. You’re using it as a moral cudgel, btw, agree with X policy and use the lever of gov’t or you’re a bad person.

                      Yes, I generally agree with your premise of government. And you’ve answered in your second sentence there why there are less conservatives willing to work in government.

                      Now, the big debate on the right is those who are currently ascendant are willing to make a confessional state using the power of government to the extent that liberals do, and the David Frenches and his ilk of the world. You might be interested in this article on the subject: https://www.city-journal.org/catholic-debate-over-liberalism

                    2. “If you don’t believe in climate change you’re not likely to work for EPA.”

                      That doesn’t really follow. Even people who don’t believe in dangerous, man-made climate change could be concerned about the original, statutory job of the EPA, preventing dangerous pollution.

                      They just wouldn’t think CO2 qualified as such. Obviously Mercury still would. Maybe they’d spend more time on hormone mimetics in the environment?

                    3. “If you don’t believe in climate change you’re not likely to work for EPA.”

                      Scott Pruitt and Andrew Wheeler say hello.

                2. LawTalkingGuy, those are good points.

          3. Yes, it didn’t happen but if it did it’s totally okay.

            I know you think principles are for the weak, but maybe don’t be so clearly a tool?

            And it’s explicitly about personal loyalty, not policy alignment, Bob.

            1. “Yes, it didn’t happen… ”

              I don’t know if it happened. No one on record, no actual documents, just unidentified people who say they saw something.

              “…but if it did it’s totally okay.”

              Personal and policy alignment are the same thing. You can’t be loyal to the policy if you lack loyalty to the man.

              1. “You can’t be loyal to the policy if you lack loyalty to the man.”

                You certainly could be loyal to a policy you approved of, but lack loyalty to the man. You’d see the difference if he changed policies.

                But, since the man is actually entitled to set the policy, at that point you’re not really qualified for the job any more.

        3. They are for political appointments.

          1. So? Political appointments should not be about personal loyalty.

            1. Of course they should be. Otherwise, the appointee leaks and acts to thwart the policy.

              1. Policy alignment is not the same as personal loyalty.

                Amazing how many on the right can’t tell the difference.

                1. Thats because there is no difference.

                2. Appointees should be personally loyal to the man who nominated them…and if their higher loyalty to God, Natural Law, the Constitution as they interpret it, etc. etc. conflicts with the presidents otherwise legal policy as he interpreted it, then they should resign.

                  Who SHOULD appointees by loyal too? To use your very tired shtick, assume that people have various good faith interpretations, and don’t assume ill intent on someone who disagrees. You’re trapped by the very deconstructionist mode of thinking you espouse.

                  1. And you’ve done it yet again, conflating personal loyalty with willingness to enact policy in a single sentence. At first I figured you were arguing in bad faith, but now I really think Sarc is correct, you cannot understand that there is a difference between the two things.

  5. But when will Justice Thomas reconsider his reconsiderations?

    1. Given Ginni’s entanglement in all this, that question is fraught with peril.

  6. Regarding original jurisdiction, could not the Supreme Court dismiss a complaint for want of a substantial federal question, which would be a decision on the merits that would have res judicata, collateral estoppel, and precedential effects?

  7. When Thomas or any other Justice overrules themselves about the extent of executive power, that’s when it’ll get spicy.

    1. Well his comments about Brand X being wrong was taking aim at Chevron deference, thru the roundabout route of taking aim at one of his decisions applying Chevron deference.

      That definitely implicates executive power.

      1. Implicates, sure. That’s all nice and overly technical.

        But what if there’s an about-face on the Appointments Clause, or maybe something about government speech.
        Or overruling the Pentagon Papers case.

  8. And yet Justice Thomas, despite his insistence here on the exact duties that the Constitution and subsequent laws impose on the Court has no problem with the usurpation of authorities by a so-called conservative Repubican President who does such things as spend monies the Congress has specifically told him he cannot. Maybe if Justice Thomas were less politically motivated and more motivated by consistency his declarations of principles would be more creditable.

    1. I wasn’t aware the Supreme Court had actually ruled on Trump’s use of the National Emergency act to fund the border wall.

      When was the decision?

    2. “who does such things as spend monies the Congress has specifically told him he cannot.”

      Technically, he spent monies the Congress specifically told him he COULD, in the event of an emergency. It was Congress that stupidly enacted the National Emergencies Act, after all.

      1. “Technically, he spent monies the Congress specifically told him he COULD, in the event of an emergency.”

        Since “I want to spend money Congress won’t appropriate” ISN’T an emergency, that doesn’t change anything.

  9. Call me when he “reconsiders” his decision in Lawrence v. Texas.

    1. Call me when Ginsburg and Kagan do. No normal person can think in good faith that when the founders wrote “nor shall any State deprive any person of life, liberty, or property, without due process of law,” that they really intended to codify a “right” to let one’s pocket rocket explode in another man’s anus.

      1. No normal person could have written that sentence.

        1. Based on the contents of PornHub your statement appears to be empirically wrong: many people are interested in the contents of other people’s anuses.

          1. You think those who ratified the 14th Amendment had the foggiest idea that it would be used to justify the removal of sodomy laws? That’s what RWH is inelegantly saying.

            Frankly, such laws are, well, counterproductive IMO…but that’s for a legislature to decide, now isn’t it?

            1. Those who ratified the 14th Amendment also obviously didn’t expect it to apply to women, but just a few weeks ago this place was full of folks assuring us that the 14th Amendment made the ERA unnecessary, no?

              That said, if your claim is that originalism has nothing to offer to the minorities the founders despised, I won’t disagree. In that it trivially leads to morally bankrupt decisions, it is a morally bankrupt philosophy.

          2. That reply was meant for Alp W. Drink.

            1. I was mainly just being flippant, but honestly I don’t really care what those who ratified it thought it would be used for. They ratified words, not intent.

              1. Right, so the Constitution means whatever you want it to mean.

                1. For a broad-enough definition of “you”, sure.

                  Ultimately, what the Constitution “means” is based on two things: mutual understanding, and the barrel of a gun.

                  Everything else is just rhetoric to try and move those two things.

  10. On a related issue, one way to avoid the “no true Scotsman” fallacy is to say, “You are right. My previous statement was wrong.” That leaves you free to propose a new argument instead of trying to find some double-talk way to avoid admitting that your previous statement was erroneous.

  11. Justice Thomas is floating a trial balloon for a PR-friendly excuse for abandoning respect for precedent.

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