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Abstract

In “Personal Precedent at the Supreme Court,” Professor Richard Re argues that Supreme Court justices tend to rely on their “previously expressed views of the law,” including their prior separate opinions when deciding new cases. Richard M. Re, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 825–26 (2023). These “previously expressed views of the law,” which Re refers to as “personal precedent,” play an extremely important and previously unrecognized role in the development of the law. Re even contends that “though typically excluded from the law, personal precedent may actually be its building block.” Richard M. Re, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 59 (2023). Re convincingly shows that Justices tend to be bound more forcefully to their own prior statements of law—whether or not these statements are consistent with the Court’s institutional statements and controlling precedent.

Justice Clarence Thomas is a strong example of this, namely in the area of federal courts. Justice Thomas has sat on the judicial bench for nearly 35 years and authored more than 700 Supreme Court opinions. Justice Thomas has shared his views in many opinions spanning his three-decades as a jurist. This Article is the first attempt to explore Justice Thomas’s federal courts jurisprudence. In doing so, it will be made evident that Justice Thomas’s opinions in this area frequently make reference to his prior, separate opinions. This Article analyzes dozens of his opinions to demonstrate the themes and general principles which characterize his views among the various doctrines of federal courts. It does so by looking at his majority opinions, concurrences, and dissents. This Article is a study following in the vein of Re’s theory, exploring the personal doctrine of one, noteworthy Justice in the field of federal courts.

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