What Exactly Do Justices Thomas and Gorsuch Disagree About In Loper Bright

Justice Thomas agrees with the "lion's share" of Justice Gorsuch's concurrence.

Back to Loper Bright. Both Justices Thomas and Gorsuch wrote concurrences. Justice Thomas explained why Chevron violated the separation of powers. Justice Gorsuch argued that stare decisis, as he conceives it, demands that Chevron must be overruled. Both of these concurrences were solo. Why did Thomas not join Gorsuch? Why did Gorsuch not join Thomas?

Justice Thomas include this somewhat cryptic star footnote:

*There is much to be commended in JUSTICE GORSUCH's careful consideration from first principles of the weight we should afford to our precedent. I agree with the lion's share of his concurrence. See generally Gamble v. United States, 587 U. S. 678, 710 (2019) (THOMAS, J., concurring).

Gamble declined to overrule the dual sovereignty doctrine. Here is the relevant passage from Justice Thomas's Gamble concurrence:

Insofar as the expansion of the reach of federal criminal law has been questioned on constitutional rather than policy grounds, the argument has focused on whether Congress has overstepped its legislative powers under the Constitution. See, e.g., Gonzales v. Raich, 545 U.S. 1, 57–74, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (THOMAS, J., dissenting). Eliminating the dual-sovereignty rule would do little to trim the reach of federal criminal law, and it would not even prevent many successive state and federal prosecutions for the same criminal conduct unless we also overruled the long-settled rule that an "offence" for double jeopardy purposes is defined by statutory elements, not by what might be described in a looser sense as a unit of criminal conduct. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Perhaps believing that two revolutionary assaults in the same case would be too much, Gamble has not asked us to overrule Blockburger along with the dual-sovereignty rule.

Gamble v. United States, 587 U.S. 678, 710, 139 S. Ct. 1960, 1980, 204 L. Ed. 2d 322 (2019)

What exactly is the delta between Justices Thomas and Gorsuch here? I do not know. I wish Thomas would have explained himself a bit more fulsomely.

This is probably an academic question, since Chevron is dead and gone–unless, Congress purports to re-enact something like Chevron by statute. In that case, the courts would then have to decide if deference itself runs afoul of the separation of powers, along the lines that Justice Thomas suggests.

A few other points from Justice Gorsuch's Loper Bright concurrence:

First, Justice Gorsuch accurately describes how Abraham Lincoln responded to Dred Scott:

Abraham Lincoln championed these traditional understandings in his debates with Stephen Douglas. Douglas took the view that a single decision of this Court—no matter how flawed—could definitively resolve a contested issue for everyone and all time. Those who thought otherwise, hesaid, "aim[ed] a deadly blow to our whole Republican system of government." Speech at Springfield, Ill. (June 26,1857), in 2 The Collected Works of Abraham Lincoln 401 (R.Basler ed. 1953) (Lincoln Speech). But Lincoln knew better. While accepting that judicial decisions "absolutely determine" the rights of the parties to a court's judgment, he refused to accept that any single judicial decision could "fullysettl[e]" an issue, particularly when that decision departs from the Constitution. Id., at 400–401. In cases such as these, Lincoln explained, "it is not resistance, it is not factious, it is not even disrespectful, to treat [the decision] as not having yet quite established a settled doctrine for the country." Id., at 401.

By contrast, Justice Sotomayor inverted this history in her Whole Woman's Health v. Jackson dissent. Her ode to judicial supremacy would have been welcomed by Stephen Douglas and Roger Taney.

Second, Justice Gorsuch echoes a point that co-blogger Jonathan Adler has been making for more than a decade now: the Roberts Court overrules precedent at a much lower rate than the Burger and Warren Courts did:

Recent history illustrates all this. During the tenures of Chief Justices Warren and Burger, it seems this Court overruled an average of around three cases per Term, including roughly 50 statutory precedents between the 1960s and 1980s alone. See W. Eskridge, Overruling Statutory Precedents, 76 Geo. L. J. 1361, 1427–1434 (1988) (collecting cases). Many of these decisions came in settings no less consequential than today's. In recent years, we have not approached the pace set by our predecessors, overruling an average of just one or two prior decisions each Term.¹

¹For relevant databases of decisions, see Congressional Research Service, Table of Supreme Court Decisions Overruled by Subsequent Decisions, Constitution Annotated, https://constitution.congress.gov/resources/decisions-overruled/; see also H. Spaeth et al., 2023 Supreme Court Database, http://supremecourtdatabase.org.

A cite to Adler would have been nice, but such is the Supreme Court.

Third, Justice Gorsuch explains that the Court's progressives love stare decisis unless there are five votes to overrule a conservative precedent.

⁸ Today's dissenters are no exceptions. They have voted to overrule precedents that they consider "wrong," Hurst v. Florida, 577 U. S. 92, 101 (2016) (opinion for the Court by SOTOMAYOR, J., joined by, inter alios, KAGAN, J.); Obergefell v. Hodges, 576 U. S. 644, 665, 675 (2015) (opinion for the Court, joined by, inter alios, SOTOMAYOR and KAGAN, JJ.); that conflict with the Constitution's "original meaning," Alleyne v. United States, 570 U. S. 99, 118 (2013) (SOTOMAYOR, J., joined by, inter alias, KAGAN, J., concurring); and that have proved "unworkable," Johnson v. United States, 576 U. S. 591, 605 (2015) (opinion for the Court, joined by, inter alios, SOTOMAYOR and KAGAN, JJ.); see also Erlinger v. United States, 602 U. S. ___, ___ (2024) (JACKSON, J., dissenting) (slip op., at 1) (arguing Apprendi v. New Jersey, 530 U. S. 466 (2000), and the many cases applying it were all "wrongly decided").

I cringe whenever Justices Kagan or Sotomayor write about stare decisis after Obergefell. There was every good reason to not overrule a precedent that is older than our society, but they did it because they could. Moreover, it seems the new trend is for the liberal Justices to say they think a precedent is wrong–like Jackson in Erlinger–but not actually call for the decision to be overruled. A distinction without much of a difference.

Onto the next post.