Adrift from Court Precedent
Terry H. Schwadron
Oct. 12, 2025
In a recent remarks to a Washington law school, Supreme Court Justice Clarence Thomas offered a startlingly open insight into the current, right-leaning court majority thinking:
Thomas, the senior conservative voice, said the Supreme Court should take a more critical approach to its settled precedents, adding that decided cases are not “the gospel.”
“We never go to the front see who’s driving the train, where is it going. And you could go up there in the engine room, find it’s an orangutan driving the train, but you want to follow that just because it’s a train,” Thomas said of the fundamental principle of adhering to precedent. “I do give perspective to precedent. But it should — the precedent should be respectful of our legal tradition, and our country, and our laws, and be based on something, not just something somebody dreamt up, and others went along with.”
Of course, all current justices swore at their confirmation hearings to uphold precedents. And,
Thomas’ train metaphor notwithstanding, the court usually chooses not to look at the humane or practical impacts of its theoretical legal rulings on real people.
The remarks come as the Supreme Court opened its season this week with a number of cases that pit the presidential powers sought by Donald Trump against written and precedent-dependent Constitutional protections as well as more cases that will question same-sex marriage, abortion medications and procedures, deployment of troops on U.S. city streets and the excessive tactics of mass deportation, including the black and white birthright citizenship clause.
Election redistricting and Trump’s attempts to step on state election administration power also will be headed for resolution in the courts — as well as the fundamental question of whether Trump will abide by an adverse court ruling.
The cases and grievances differ, but an underlying theme of unifying presidential power or the “unitary executive,” a once-fringe theory now legally thrown about in a commonplace manner.
As leader of the court six-justice conservative majority, Thomas has ruled or indicated in dissents that he wants to revisit past decisions with an eye to giving Trump broad discretion. In doing so, he has granted Trump powers that he voted to deny to Joe Biden in an increasingly partisan era.
Thomas, of course, is among the most vocal justices for using an “historical” approach to casting current-day disputes but has proved selective in his plucking of history to oppose affirmative action, has found reason to overturn abortion rights, and has allowed Trump to ignore Congress. To many, this is the Thomas court even more than the court of Chief Justice John G. Roberts Jr., whose efforts have been to keep decisions as narrow as possible.
Rare Insider Insights
Public remarks by Supreme Court justices are rare, and so they get more-than-usual attention. Justice Amy Coney Barrett has a new book out and has been on television carefully rebuking “extremism” by liberal justices but also criticizing the Trump administration’s lack of compliance with court orders. She has drawn MAGA criticism.
Justice Samuel Alito, who sees himself as a “judicial originalist” recently was defensive at a law school gathering about applying originalist intent toward overturning same-sex marriage, which he suggested may conflict with equal protection clauses.
Liberal Justices Sonia Sotomayor and Ketanji Brown Jackson in separate school appearances offered brutal criticism for majority decisions that they see as highly partisan. They have been particularly critical of the court’s increasing turn to its “shadow docket” or “emergency docket” to blunt any number of temporary restraining orders without explanation that had been filed against the Trump administration immigration campaign or dismissals of federal workers without congressional authorization.
It is many of those cases that are due for more complete hearings before the court in this session, including legality of tariffs, various deportation strategies, and the dismissals of federal workers.
Nevertheless, public perception is that the most contentious issues arriving at the Supreme Court face a panel with most votes on discernible left-right questions already baked in. Trump certainly is counting on that by appealing every adverse lower court ruling to the top, often asking the Supremes to skip the appeals court route.
Dropping Trust, Added Confusion
In an unusual poll, more than three dozen federal judges have told The New York Times that the Supreme Court’s turn to brief, opaque emergency orders in cases related to the Trump administration’s powers to abridge precedent and law have left them confused about how to proceed in those matters and are hurting the judiciary’s image with the public. That includes conflicting advice about whether administration policies should be left in place even while they are making their way through the courts.
Noted retired conservative U.S. Appeals Court Judge J. Michael Luttig told The Guardian in an interview that Roberts is responsible for significant change in a court now widely seen as partisan. Luttig sees a fundamental distortion of the American legal system, an important opinion given Luttig’s long history of conservatism.
“The chief justice is presiding over the end of the rule of law in America,” Luttig said, adding that under Roberts, the court is “acquiescing in and accommodating the president’s (Trump) lawlessness. And it is doing so without briefing, without argument, without deliberation — and without even a single word of explanation of its decisions.”
Polls and many analytical articles say, as Steven Greenhouse argues this week in The Guardian, that many Americans are dismayed that the conservative justices have been so submissive to Trump, the most authoritarian-minded president in U.S. history. A new Gallup poll found that a record high 43% of Americans think the court is too conservative, higher than the 36% who think the court is “about right.”
Respect for the court as an institution has diminished substantially over time.
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