The Volokh Conspiracy

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Supreme Court

Supreme Court Turns Down Opportunity to Reconsider Three More Precedents

Justices Thomas and Gorsuch have a much greater appetite for reconsidering prior precedent than the other justices do.


Yesterday's Supreme Court order list produced five dissents from the denial of certiorari. In three of those cases, the justices diseenting from the denial wanted the Court to accept certiorari so that the justices could reconsider, if not overturn, prior Court precedent.

  • In Clendening v. United States, Justice Thomas dissented because he believes the Court should overrule Feres v. United States, a 1950 case in which the Court held that military personnel cannot sue the United States for any injury "incident to military service," even though the Federal Tort Claims Act (FTCA) does not preclude such suits. Wrote Thomas: "Congress set out a comprehensive scheme waiving sovereign immunity that we have disregarded in the military context for nearly 75 years. Because we caused this chaos, it is our job to fix it."
  • In Khorrami v. Arizona, Justice Gorsuch dissented because he  beleives the Court should reconsider Williams v. Florida, a 1970 decision in whcih the Court held that the Sixth Amendment right to a jury trial (as incorporated against the states) does not require a twelve person jury. Wrote Gorsuch: "Williams was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation's courts." Justice Kavanaugh would also have granted certiorari, but he did not join Justice Gorsuch's dissent.
  • In Buffington v. McDonough, Justice Gorsuch dissented form the Court's refusal to consider an opportunity to narrow the Chevron doctrine. Whereas in prior writings Gorsuch expressed a desire to overturn Chevron v. NRDC outright, his Buffington  dissent trains its focus on the "expansive reconstruction of Chevron" that holds sway in too many lower courts. Wrote Gorsuch: "With the passage of time, the problems with reading too much into Chevron have become widely appreciated. . . . We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law's meaning in the cases that come before the Nation's courts. Someday soon I hope we might." As Josh Blackman notes below, no other justice joined this dissent. I may have more to say about this opinion later.