Justice Thomas Cautions Against Following Precedent

0:00So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business.

0:57IBM. As industries evolve faster than ever, companies need an environment that accelerates strategic growth, and Michigan delivers on that promise. From emerging startups to global enterprises, Michigan offers what executives value most, a resilient, innovative ecosystem, diverse communities that attract top talent, and a quality of life that supports work-life balance. With our unified Team Michigan approach, businesses scale faster and compete at the highest level. Michigan, pure opportunity. Seize your opportunity at michiganbusiness.org. This is Bloomberg Law with June Grosso from Bloomberg Radio.

1:39Just think of law as these cases as a series of cars on a long train. And you just accept the train and you just add another car. We just follow wherever it's going. 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 and find it's an orangutan driving the train. Would you want to follow that just because it's a train? Justice Clarence Thomas used that train metaphor last week to describe the import of settled law or precedent in deciding new cases. Thomas downplayed the importance of prior Supreme Court cases and said he wouldn't follow them if it doesn't make sense to him.

2:27I don't think that any of these cases that have been decided are the gospel. And I do give respect to precedent. But the precedent should be respectful of our legal tradition and our country and our laws and be based on something, not just something that somebody dreamt up and others went along with. In the new term beginning on Monday, the Supreme Court will be considering several cases with long-standing precedents, including a 90-year-old precedent that limits a president's ability to remove members of some independent federal agencies without cause, and a landmark 1986 decision about the use of race in redistricting under the Voting Rights Act.

3:15So Thomas' comments dissing the importance of prior case law might lead some to question whether those precedents will be overruled, much as the court has overruled precedents like the constitutional right to abortion and race in college admissions decisions. My guest is Supreme Court expert David Super, a professor at Georgetown Law. David, what was your reaction to Thomas's comments? Justice Thomas's remarks were quite remarkable. He said that adherence to precedent is perhaps overrated. He compared it to a situation where people are riding a train without knowing who's in the cabin driving the engine and suggested that that might well be an orangutan, and we should not take directions from an orangutan.

4:09I've never compared the U.S. Supreme Court to an orangutan, but he has apparently. And he said that precedent may be something that one person just thought up and everyone else said, yeah, let's go along. And on that basis, he thinks that the court needs to be more willing to overrule precedent unless deferential to precedent. When the Supreme Court justices have their confirmation hearings, they all say, oh, you know, we're going to follow precedent. Yes, yes, yes. And of course, they don't in many cases. So tell us about the importance of precedence in the law. Well, precedent is what makes the courts distinctive.

4:52Anybody can decide however they want at the moment. Why we listen to the courts is because they are bound by the law. And in the Anglo-American system, the law is precedent. We even have a fancy term for it, starry decisis. And it is supposed to be what keeps unelected judges from acting willfully and just pursuing their personal agendas. He also said it's not the gospel, which I always thought precedent was the gospel. But as you mentioned, he, in a backhanded way, made fun of prior Supreme Court justices. He said, the precedent, if it's totally stupid, and that's what they've decided, you don't go along with it just because it's decided.

5:36Does it show just a lack of respect for prior justices? Well, it certainly does. It suggests that the current court is smart, and its predecessors are foolish, which is a remarkably condescending approach. It's also an ahistorical approach. We've had many brilliant justices on the court. We've had many courts that historians regard as all-star courts packed with brilliant legal minds, and to suggest that they can be compared to orangutans is disappointing. Thomas is a believer in originalism, looking at history. But yet when the justices look at history, they often come up with totally different conclusions about the historical origins of the law.

6:28Why does he think that that's so much better than following precedent? I don't know. And I find it exceedingly strange that perhaps the court's most vociferous originalist is taking this view. Because if there is one core principle of the original understanding of the courts is that they were bound by precedent. That's the essence of the common law system that England had for many centuries before the founding of this country, and that originalists like Justice Thomas say should control how we decide things now. There are important decisions that were handed down 500, 600 years ago that decided difficult questions and that no court since then has ever disputed.

7:20Justice Thomas seems to suggest that that core original aspect of Anglo-American jurisprudence is irrelevant. This is not really anything new for Justice Thomas. The late Justice Antonin Scalia told one of Thomas's biographers, quote, he doesn't believe in stare decisis, period. And Thomas has also frequently suggested overturning landmark opinions in cases that are not before the court. Well, and it's important that Justice Clea was Justice Thomas's best friend on the court and most frequent ally. But unlike Justice Thomas, Justice Clea generally decided the cases that were brought for him, whereas Justice Thomas for a long time has written concurring or dissenting opinions inviting parties to bring cases to the court.

8:18That departs from another important aspect of originalism, which is that the courts are passive. They take the cases that come to them, but they don't go out trying to do affirmative policymaking. Again, that goes back hundreds and hundreds of years. And an originalist like Justice Thomas should be particularly anxious to follow the traditional role of the court as passive deciders rather than as policymakers with an agenda. The Roberts Court has overturned, I read, 21 precedents, but it includes significant precedents. Of course, the constitutional right to abortion in Roe v. Wade, race-conscious admissions in higher education in the Harvard case, the power of executive agencies in the Chevron Doctrine, a 40-year-old precedent on unions in the Janus case.

9:12And 17 of those cases that they overturned were split five to four decisions with the conservative justices on one side and the liberal justices on the other. I mean, does that tell you anything about what was going on there? Well, it does suggest that this is a court with an agenda, that they are not calling balls and strikes, as justices like to say when they're seeking confirmation, but rather that they're pursuing a particular agenda, that they are more conservative than their forebears, and they're trying to move the law in that direction. I should note that one of those five court decisions you mentioned actually had five justices voting to overturn precedent and the chief justice, a very conservative justice in his own right, joining with the three moderate to liberal justices in disagreeing, that being Dobbs.

10:13Roberts recently has talked about how, you know, the Roberts court, his court, overturned precedents at the lowest rate of any of the recent courts. And the New York Times study said that it was 1.6 per term averaged out. But does that ignore the significance or the importance of the precedents that they're overturning? Well, it does. And it also is subject to a lot of counting. There have been many, many, many cases about abortion rights after Roe v. Wade. Do you say that Dobbs only overturned Roe? No, it made a whole bunch of other cases irrelevant and wrong as well when they said this or that restriction on abortion was unconstitutional.

11:00So you have to make some very arbitrary choices in doing an account like that. There are going to be some very, very technical cases in admiralty law that may get overturned because of new technology and no one really knows or cares. And then there are going to be sweeping decisions about the 14th Amendment, about the separation of powers, and that kind of counting game blurs all of them together. When we look at the upcoming term that starts on Monday, there seem to be a few precedents that may get overturned, and one involves that nearly century old ruling called Humphrey's Executor that protects the heads of independent agencies.

11:47Justice Elena Kagan, in a dissent when the majority allowed Trump to fire, for now, the last Democratic member of the FTC, said that her colleagues are, quote, raring to overturn Humphrey's executor. Do you think that'll be the next precedent to go? It will be unless they overturn something else first. Humphrey's executor is clearly on its way out. There's a real irony here because Justices Gorsuch and Kavanaugh have criticized lower courts for not showing enough respect for Supreme Court precedent, even when that precedent is handed down through the shadow docket without full briefing, without oral argument, without much of an opinion.

12:32And here, Justice Thomas, their partner, is turning around and saying that he would disrespect Supreme Court decisions, even that were fully argued, fully briefed and the result of painstaking opinions. I think the justices need to decide whether the work of the Supreme Court is or is not entitled to great deference. The Trump administration is asking the justices to take his challenge to birthright citizenship. And they did use the birthright citizenship clash to make it harder for federal judges to block government policies nationwide. If they take this case, does that say, yes, we're going to overturn the precedent from 1898 that supported birthright citizenship?

13:22And it's the precedent handed down by arguably the most conservative Supreme Court in the nation's history. So it would be quite remarkable to overturn that case. I think the justices will take this simply because it's a high profile and very important matter that the president has been emphasizing. I would have trouble imagining how they could overturn it. The original opinion is based on analysis of historical uses of terms going back hundreds of years. It's a very model of originalism. And the Trump administration's complaint is largely a political one responding to their base and their opposition to immigrants.

14:07any serious originalist approach would affirm the plain language of the 14th Amendment and the decision from the 19th century. In a concurring opinion in the Dobbs case, which overturned Roe, Thomas suggested revisiting cases concerning the rights to conception, same-sex intimacy, and marriage equality, and the court is being asked to overturn the Obergefell decision, the landmark 2015 decision that legalized same-sex marriage nationwide in a case involving Kim Davis, the former Kentucky clerk who became famous when she was jailed for refusing to issue marriage licenses to a gay couple on religious grounds.

14:55Do you think that same-sex marriage is in jeopardy? It certainly is in jeopardy. It's hard to know what the court will do. Chief Justice Roberts has been insisting that the judges look at cases on their merits and are not pursuing a political agenda. If the court turns over a decision handed down barely a decade ago that has had this profound impact on the nation's fabric, I think his effort to persuade people that this court is anything other than a super legislature will fail. I mean, do you think Thomas with these statements is an outlier that the other justices are sort of cringing when they hear them?

15:41I imagine the chief justice was cringing all the way through reading accounts of this because Justice Thomas is so overtly politicizing the court. But Justice Thomas is winning a lot more cases than he's losing these days. So it would seem that a number of other justices are pretty comfortable with this approach. So you think it's just the chief that's uncomfortable with these sort of brazen statements from Thomas? I think a lot of the others, first and foremost, the chief, but certainly also Justice Barrett, would rather we not be this explicit about the court pursuing its own agenda. But Justice Thomas, I guess, feels like he's reached the point where he sees no reason to be secretive about it.

16:31He's got a supermajority. He can lose a very conservative justice and still win a case. And so he's prepared to dispense with pretense. And why do you say Justice Barrett in particular? Well, she's given a couple of interviews lately in which she said that we're not in a constitutional crisis and things are working more or less ordinarily and is sort of downplaying the importance of what's happening. and seems to suggest that what we're doing is simply a technical act of judging. And Justice Thomas is saying, no, I'm not doing technical judging. I'm getting rid of the stupid stuff. Well, we're off to a new start on Monday.

17:15We'll see whether this new term brings any more reversals of precedent. Thanks so much, David. That's Professor David Super of Georgetown Law. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge. On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index.

17:53You approve the workflow and your agent handles the rest. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less. That's public.com slash market. Paid for by Public Investing. Brokerage services by Open to the Public Investing, Inc., Member FINRA, and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures.

18:34If your best finance people are doing expense reports, chasing receipts, or spending time on month-end close, it's time to get Brex AF, a Gentic finance that eliminates that work before it starts. Learn more at brex.com slash AF. The official language of football is trash talk, late night group chats, memes, and unbelievable highlight clips. That's why Boost Mobile brings you our new global connection plan. The first plan ever made for WhatsApp. Get unlimited data, talk and text, international roaming, and calls to over 100 countries for just$40 a month. $40 price includes$5 a month auto pay discount.

19:14After 40 gigabytes of premium high-speed data, speeds will be lowered. Coverage not available everywhere. Visit store or boostmobile.com for details. Last week, President Trump warned about the unproven link between women's use of Tylenol during pregnancy and autism in children and advised women to tough it out. For this reason, they are strongly recommending that women limit Tylenol use during pregnancy unless medically necessary. that's, for instance, in cases of extremely high fever. Medical experts and organizations immediately slammed the remarks as irresponsible and dangerous advice not backed by science.

19:58And Tylenol's manufacturer said there is no proven link between taking acetaminophen and autism. Still, the FDA has initiated the process for a label change to products containing acetaminophen. Joining me is healthcare attorney Harry Nelson, a partner at Leach Tishman, Nelson Hardiman. So let's start with the elephant in the room, so to speak. President Trump and, of course, RFK Jr.'s claim that there is a link between the use of Tylenol during pregnancy and autism in children. So President Trump and the FDA were citing two U.S. studies. In both studies, there was some heightened rate of autism in the population of moms who took acetaminophen, Tylenol, during pregnancy.

20:52So the FDA was relying on these two studies. What many people are pointing out is that there was a very large Swedish study of the same issue with 2.5 million people participating, substantially a bigger cohort, which found absolutely no link. So first, there's really competing data on the point. And second, there's nothing here to suggest causation, that Tylenol causes autism if taken by a mother in pregnancy. rather some correlation which needs to be studied further. So it's an interesting case, again, of a major divide about what good science looks like. Well, also in the FDA news release itself, it said, it's important to note that while an association between acetaminophen and neurological conditions has been described in many studies, a causal relationship has not been established, And there are contrary studies in the scientific literature.

21:50So why are they doing this if they're saying in their own statement that it hasn't been established? My sense is that this president and this administration is really trying to make sure that it maintains an activist kind of footing with people who are looking for change in its base of supporters. And that this was a very aggressive style of announcement that was made before there was any kind of conclusive process here. but that this was done really as a kind of political driver with the president wanting an opportunity to stand at the podium and make the claim that he's doing something to protect public health and fighting back against the scientific establishment, you know, in yet another way.

22:40So that's at least my sense of why this happened the way it did. When does the law allow the FDA to change a drug label? So the FDA can at any point initiate an administrative process of looking at how a drug, both a prescription drug or an over-the-counter drug, and Tylenol, interestingly, has both forms. There's a whole administrative process by which a change can be proposed. The public has a chance to comment on it, and then it's finally ordered. And then only after that process do prescription drug manufacturers, like the company Kenview here that makes Tylenol, have the right to challenge it.

23:16So there's a long process that's still ahead, and it's not unusual for the FDA to undertake that process. It's just that here, the sequence of events of really that evidence review and a decision and a process happening came second. Normally, that process comes first. Here, the political announcement came ahead of everything. Is it normal to do this without negotiating with the company first? I do think that it is more typical to allow prescription drug manufacturers to be part of a process and make sure that all of the evidence, all of the research is considered. So I don't know exactly how much Kenview, how much opportunity he had.

23:54It seems clear from everything that the company is saying that it intends fully to challenge this action and argue that the FDA is acting without sufficient scientific justification. And that process, certainly, if there was an unquestionable issue here, the FDA normally could have started in dialogue with the company to make sure that this action was sound. You know, the thing that worries me the most here is that Tylenol is one of the most widely used and trusted medications out there during pregnancy, as well as for many other conditions. And this creates a risk of confusion, of fear, and, you know, a process that's not great for public health.

24:30Yeah, I mean, there are so many stories about doctors, OBGYNs, receiving tons of calls from pregnant women who don't know what to do. They're very confused about this new allegation, I guess, from the FDA. Yeah. And it's, by the way, globally, we're seeing with World Health Organization and European drug regulatory systems that around the rest of the world, the message is going out that acetaminophen is perfectly safe for pregnant mothers. And so this is like creating a real contrast between the public health word in the rest of the world and apparently in the United States if this goes all the way through.

25:09And do we know how the FDA intends to change the label? Is it going to be like a tobacco warning on cigarette packs? Well, it's a big question. Again, it's a question whether this is only going to apply to the prescription drug form or also to the over-the-counter form. There's a lot of generic acetaminophen out there on shelves. It's not clear exactly who this is going to apply to or what the label is going to look like. That's something that will have to be resolved by the FDA as we go through the administrative process ahead. So the drugmaker can only challenge in the administrative process after the review is complete?

25:44Yeah, exactly. There needs to be a final order. So first, the agency has to make the final proposed action, as it's called. And then there has to be an opportunity for the public to comment. And only when the action is actually finalized and is an agency decision by the FDA, at that point, you know, the issue is ripe to be challenged. by the drug manufacturer. Harry, does anyone in the healthcare community doubt that no matter what the public comments are and what the manufacturer says, that the FDA is going to go ahead to try to relabel acetaminophen? I think it's fairly safe to say this administration has a strong grip on the FDA.

26:25No one is expecting any kind of independence or for the FDA leadership to buck the announcement, particularly after it was made by the president. So, you know, and by the way, I should say that manufacturer will have initially it has a challenge in the FDA, but eventually it will get to a federal court and be before a federal judge to make the argument that this action is arbitrary and capricious and not grounded in solid science. So there's no question in my mind that the FDA is going to move forward here. But the question of whether this actually stands is a very big one. Coming up next on the Bloomberg Law Show, I'll continue this conversation with health care attorney Harry Nelson.

27:03Can the manufacturer ignore the administrative process and go straight to court? I'm June Grosso, and you're listening to Bloomberg. The Food and Drug Administration said it initiated the process for a label change to products containing acetaminophen after President Trump's announcement last week that warned about the unproven link between women's use of Tylenol during pregnancy and autism in children. Trump's announcement on the medication, which has long been recommended during pregnancy to treat pain, fever and aches, has spurred confusion for patients and pushback from medical organizations.

27:43I've been talking to health care attorney Harry Nelson, a partner at Leach Tishman Nelson Hardiman. Since the manufacturer basically knows what's going to happen down the road, can they jump the administrative process and just go to court? No, it's a fundamental principle in administrative law that you have to wait for a final action. Judges don't want to be making decisions about things that are still in flux in the regulatory process. So since there has been no action taken yet by the FDA, just a warning that it's going to happen, the company doesn't have great recourse. It essentially is sort of fighting, has to really fight this issue for the time being in the media and try to hold on to public trust and, you know, fight for its stock price and build confidence.

28:30But judges do not want to be addressing this issue until the FDA has actually done something. This is sort of wild, but could the company sue Trump and Kennedy for defamation? The principle of sovereign immunity here limits the action. We already have the Supreme Court, by the way, broadening substantially the things that the president is immune for actions taken in executive office. But this is classically something where there's a mixed case. So it's not like President Trump acted without any scientific basis. It's just that there's evidence on both sides of this issue. So I think it's going to be very difficult for the company to think about actually having a case against Trump or against RFK.

29:09This is just, I mean, a tip of the iceberg. The Trump administration or RFK, his department, is continuing to put out information and guidance that contradicts medical organizations and scientists and state health departments on vaccines and antidepressants. Is anything being done about that? I think you're right. By the way, a lot of how I view this is this issue is in many ways adjacent to this broader effort, whether it's around vaccines or otherwise on public health, to really undermine confidence in agencies and to express more skepticism and to validate people who are already incredibly skeptical of our public health agencies.

29:56So I think a massive kind of political persuasive effort has been underway, kind of underpins all of these issues around RFK and around our public health system. I think that's an issue that's going to be decided in many ways at the ballot box and by courts, which are going to be called upon to decide what is arbitrary and precious and when government agencies are justified. So I don't know that there's any recourse other than voting for administrations that take positions on public health and science that people support or judges standing in. Let's say the FDA approves the final rule and then they're sued by the manufacturer.