Justice Clarence Thomas issues dissent rebuking opinion he authored

The Supreme Court on Monday decided not to take up an appeal in a tax law case and, in a somewhat rare move, Justice Clarence Thomas issued a dissenting opinion on the matter to express his belief that the case should have been heard.

What was most unusual about Thomas’ dissent is that he cited one of his own prior written opinions to make the argument that the major precent it set should be reviewed and potentially overturned by the high court, Fox News reported.

Thomas questions precedent

The case that was before the court, Baldwin v. United States, involved a couple who sued the Internal Revenue Service (IRS) to receive a tax return that had been denied to them. They claimed that they had already mailed in their return before the IRS changed a rule that applied to them, a rule that had previously been interpreted differently — and presumably in their favor — by the courts.

At the heart of the Baldwin case is a judicial doctrine known as the Chevron deference, in which courts typically defer to executive agency interpretations of ambiguous statutes, as long as their interpretation could be considered “reasonable.” Stemming from the Chevron doctrine was a precedent set by an opinion Thomas wrote in a telecommunications case known as Brand X, in which it was determined that courts should continue to defer to executive agencies on matters of statutory interpretation even if the courts had already issued a ruling on that particular law.

Thomas, who has already gone on record as suggesting that reliance on Chevron has the negative effect of facilitating the expansion of the federal bureacracy and has urged the Supreme Court to revisit some of its past precedents, used his dissent in the court’s decision not to hear the Baldwin case to further advance that position, even as it called into question his own Brand X precedent.

Citing himself to argue against himself

Justice Thomas, quoting himself from a 2018 opinion he authored, which in turn had quoted the late Justice Robert Jackson from a 1950 opinion, wrote, “Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position.””

Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation,” he continued.

Thomas proceeded to explain at length his issues with the Chevron deference doctrine set in 1984 to argue that it “compels judges to abdicate the judicial power without constitutional sanction.” Along the way, he cited numerous Supreme Court cases from the 18th and 19th centuries, as well as other opinions he’d authored in the 20th and 21st centuries post-Chevron to show how the courts should act with regard to ambiguous laws in a manner that didn’t cede their constitutional powers to the executive branch.

Time to revisit past precedents

Moving on, however, Thomas wrote, “Even if Chevron deference were sound, I have become increasingly convinced that Brand X was still wrongly decided because it is even more inconsistent with the Constitution and traditional tools of statutory interpretation than Chevron.”

He noted that the Brand X precedent essentially required the courts to overrule their own precedents whenever an executive agency reinterpreted a law, which would be in direct conflict with the Constitution and the separation of powers. He continued:

Brand X takes on the constitutional deficiencies of Chevron and exacerbates them. Chevron requires judges to surrender their independent judgment to the will of the Executive; Brand X forces them to do so despite a controlling precedent. Chevron transfers power to agencies; Brand X gives agencies the power to effectively overrule judicial precedents. Chevron withdraws a crucial check on the Executive from the separation of powers; Brand X gives the Executive the ability to neutralize a previously exercised check by the Judiciary. But, with this said, there is no need to question Chevron in order to recognize the heightened constitutional harms wrought by Brand X.

“Regrettably, Brand X has taken this Court to the precipice of administrative absolutism. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations,” Thomas lamented. “Brand X may well follow from Chevron, but in so doing, it poignantly lays bare the flaws of our entire executive-deference jurisprudence.” He went even further, opining:

Even if the Court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X.

The justice’s arguments are compelling indeed and, while a bit confusing, strongly imply that Thomas — perhaps joined by other conservative jurists on the Supreme Court — may be setting the stage for the court to eventually revisit not only Brand X and Chevron, but also other longstanding precedents that could include — to the horror of liberals — Roe v. Wade.

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