Precedent Meets the Wrecking Ball
Clarence Thomas signals his eagerness to dismantle decades of precedent, putting rights from contraception to civil rights back on the chopping block.
Clarence Thomas at the Catholic University of America’s Columbus School of Law on 25 September. Photograph: Rod Lamkey/AP
Setting the Stage
Justice Clarence Thomas has never hidden his disdain for precedent, but this week he laid his cards firmly on the table. Speaking ahead of the Supreme Court’s new term, Thomas urged his colleagues to revisit what he called “demonstrably erroneous” decisions, signaling that long-standing rights may be up for grabs. The docket is already stacked with cases that could redefine everything from voting rights to the limits of executive power, and his remarks set the tone: stability is not the goal.
Thomas, the longest-serving member of the Court, declared, “When faced with demonstrably erroneous precedent, my rule is simple: we should not follow it.” He has been hinting at this philosophy for years, but saying it so plainly as the Court embarks on a term filled with politically explosive cases was a shot across the bow. The message to conservative activists and politicians is clear: if you bring us the right case, we might just overturn what you’ve despised for decades.
This comes at a moment when President Trump and his allies are already pushing the boundaries of executive authority. With the Court leaning sharply right, thanks to his appointments, the possibility of judicial guardrails disappearing feels less like speculation and more like an imminent threat.
The Power at Play
Thomas’s declaration is not just a legal theory—it is part of a decades-long conservative project to dismantle the scaffolding of 20th-century governance. Precedent, in constitutional law, is what makes the system predictable and fair. Without it, rights can shift overnight. By elevating ideology over stability, Thomas aligns himself with reactionary movements that see the Court as a tool to roll back the New Deal, the Civil Rights era, and feminist gains.
And here’s the bitter irony: conservatives spent decades railing against so-called “activist judges.” That phrase was their cudgel, meant to paint liberal jurists as radicals inventing rights out of thin air. Yet who could be more activist than Clarence Thomas? He is openly calling for sweeping reversals of settled law, not because society demands it but because his ideology does. This is projection at its purest—accusing opponents of the very behavior they themselves embrace.
The hypocrisy becomes even starker when you consider what’s at stake. Among the precedents Thomas has criticized is Loving v. Virginia (1967), the case that struck down bans on interracial marriage. Thomas himself is in an interracial marriage. He personally benefits from the very precedent he now treats as disposable. It’s the oldest trick of privilege: climb the ladder of rights and then pull it up behind you. His marriage is secure, his life settled, but his philosophy would leave others exposed to the very discrimination he once escaped.
Why should it be Thomas’s business—or anyone else’s—who uses birth control, who they marry, or how families build their lives? By discarding precedent, he signals not judicial restraint but judicial overreach, wielding power to decide the most intimate details of Americans’ lives. It’s not a defense of the Constitution; it’s an activist crusade dressed up in the language of originalism.
The impact on the political spectrum is profound: very significant. A Court openly hostile to precedent threatens not just progressive gains but the very idea of an independent judiciary. The institution risks being seen less as an interpreter of law than as an enforcer of partisan will.
A Lens of Justice
The rights most at risk are not abstract. They are lived daily by women, LGBTQ people, racial minorities, and the poor. Consider Griswold v. Connecticut (1965), which affirmed the right to contraception. Without precedent, states could ban birth control tomorrow. Or Loving v. Virginia (1967), which legalized interracial marriage—also built on precedent Thomas dismisses. That Thomas himself is in an interracial marriage underscores the cynicism of his stance. He got what he wanted, and now he is pulling up the ladder behind him.
That ladder matters most for those without his insulation of wealth, gender, and status. Black women still face disproportionate barriers in maternal health. Queer couples are still navigating discrimination in family law and healthcare. Immigrants, people with disabilities, and Indigenous communities rely on precedents that affirm their rights in courtrooms where power often tilts against them. When precedent is stripped away, it is not people like Clarence Thomas who lose access to contraception, healthcare, or legal protections—it is the already vulnerable.
Rolling back precedent is rarely neutral. It disproportionately harms those already marginalized. Feminist critics have long noted that when courts retreat from precedent, women’s autonomy is the first to go. Civil rights rulings, affirmative action, environmental protections—all become expendable when precedent is reduced to “erroneous.” Thomas’s words amount to a license for reactionary forces to relitigate every settled right of the last century.
Reframing the Debate
Conservatives frame their project as one of “originalism” and fidelity to the Constitution. But that framing is itself a euphemism. “Originalism” often masks a desire to freeze society at the point when white, male property owners held exclusive power. We should reframe the issue not as a technical legal debate but as a democratic one: who benefits when precedent is dismantled?
Progressives can shift the conversation by emphasizing that precedent protects stability and equality. Without it, the law becomes a tool for those already in power. The counter-narrative is not about clinging to the past but about securing a future where rights cannot be stripped away by judicial whim.
Building the Conversation
When talking to skeptics, avoid legal jargon. Start with stories: a couple whose interracial marriage was once illegal; a teenager relying on contraception to finish school; workers who count on safety regulations. These are not abstract doctrines—they are protections that allow people to live dignified lives.
Logical appeal: Precedent prevents chaos in the law. Emotional appeal: Without it, families and communities lose security. Ethical appeal: A justice system that discards precedent undermines trust in democracy.
Storytelling matters here. Just as LGBTQ visibility transformed public opinion, we can use personal stories to show what is at stake when precedent is attacked.
The Counterpoint Trap
Here are the bad faith arguments already surfacing:
“Presidents need direct control over regulatory agencies to ensure they enforce the law.” → Projection
This paints consolidation of power as accountability, when in reality it’s about weakening protections.
Takeaway: Emphasize that real accountability requires independence from political interference.
“Judges are just correcting activist overreach from the past.” → Motte-and-Bailey
They retreat to moderation when challenged, but the real goal is sweeping rollbacks.
Takeaway: Demand clarity—are they talking about minor tweaks, or overturning entire rights?
“The Constitution doesn’t guarantee these rights anyway.” → Hyper-Skepticism
This dismisses decades of jurisprudence as if they were accidents.
Takeaway: Point out that constitutional interpretation has always evolved, from abolishing slavery to recognizing free speech rights.
“If precedent mattered, we’d still have segregation.” → Whataboutism
This line ignores how precedent has been used to expand liberty. The hypocrisy is glaring: Clarence Thomas himself benefits from Loving v. Virginia, the case that struck down interracial marriage bans, yet he now treats it as expendable. He climbed the ladder of rights and now seeks to yank it away from others.
Takeaway: Stress that precedent is what made Thomas’s own marriage legal—and stripping it away threatens everyone else’s security.
Deeper Dive
“Democracy in Chains” by Nancy MacLean – A crucial look at how conservative legal thought has been weaponized to dismantle democratic institutions.
“The Majority Rules” by Dahlia Lithwick – Insight into how courts have historically expanded rights and why precedent matters for justice.
“How Democracies Die” by Steven Levitsky and Daniel Ziblatt – A global perspective on how institutions crumble when elites abandon norms.
“Justice on the Brink” by Linda Greenhouse – An account of how the current Supreme Court has shifted toward reactionary rulings.
The Last Laugh
Clarence Thomas used precedent for himself and now wants to torch it for everyone else. That isn’t law. It’s justice for me, none for thee.