Justice Thomas argues against his previous opinion on administrative state

Supreme Court Justice Clarence Thomas isn’t letting his opinions be bound by precedent — including his own.

In a shocking dissent Monday, Thomas argued against his own previous opinion in a 2005 case that shored up the power of the administrative state, Fox News reported. The Supreme Court justice said that his views on the federal bureaucracy have evolved and that he would welcome the chance to reconsider his decision in the Brand X case, which arrogated “unconstitutional” powers to federal agencies.

“Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position,’” he wrote, borrowing language from a 1950 opinion.

Clarence Thomas argues with himself

Thomas was responding to the court’s dismissal of a case, Howard Baldwin v. U.S., which called for Brand X to be overturned. Thomas sided with the court in the 6-3 decision, which took the side of the Federal Communications Commission (FCC) over a federal appeals court in a dispute over broadcast regulation.

In an unusual dissent, Thomas argued against his own past opinion in the 2005 Brand X case, which reaffirmed the 1984 Chevron principle calling for courts to defer to regulatory agencies when the law is unclear, and even if federal courts have ruled on the law in question. The new case was brought by a couple suing the IRS over a rules change that the agency made despite a federal court ruling that affected their tax return.

The Chevron doctrine has been blamed by strict Constitutionalists for contributing to the growth of a vast and unaccountable bureaucracy. In his opinion, Thomas echoed that view, declaring the Chevron principle unconstitutional. Thomas wrote on Monday:

Chevron compels judges to abdicate the judicial power without constitutional sanction. Chevron also gives federal agencies unconstitutional power.

Thomas attacks precedent

Thomas has attracted attention for his refusal to be strictly bound by stare decisis, which calls for precedent to be closely followed. His position has particularly alarmed abortion activists, who are increasingly fearful that Roe v. Wade could be overturned thanks to a shift in the Supreme Court to the right under President Donald Trump.

Often considered the court’s arch-conservative, Thomas is no friend of the left and has frequently attacked Roe as immoral and sloppily argued. He prompted backlash last year with an opinion declaring that “demonstrably erroneous” precedents should be overturned, particularly after he authored a blistering opinion comparing abortion to eugenics that garnered headlines.

Journalists interpreted Thomas’ call to overturn New York Times v. Sullivan, which protects newspapers from defamation suits unless “actual malice” can be shown, as an attack on their profession last year.

Backlash against conservative judges

The backlash against Thomas is part of a wider attack on the Supreme Court’s “legitimacy” by the left, which has grown more urgent as progressives sense a loss of judicial power. That backlash has even percolated up to the Supreme Court itself.

In a frankly political statement, liberal Justice Sonia Sotomayor accused the Supreme Court Friday of working to further Trump’s ends after it allowed the president’s “public charge” rule to take effect. The rule, which bars migrants who use public assistance from getting green cards, has been labeled a “wealth test” by activist judges committed to relaxed immigration enforcement.

Critics will surely see Thomas’s dissent in this case as yet another “dangerous” incursion on the hallowed rights laid down by judicial precedent — in this case, of the administrative state, and once advocated by Thomas himself. But as Thomas put it, even wise judges sometimes get it wrong.

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