In-Chambers Stare Decisis

Law clerks are routinely instructed (by their predecessors, their judges, or some sort of in-chambers manual) that it's imperative to ensure that the opinions they work on be consistent with those written under the judge's name in prior years. There's a weaker imperative to ensure that a judge's written opinions be consistent with the votes the judge cast in prior cases — weaker, because there's some value in not insisting at every opportunity on a judge's distinctive views.Justice Thomas's opinions this week illustrate — and raise questions about — the practice of in-chambers stare decisis. His separate opinion in Timbs insists, as did his opinion in McDonald, that the textual location for protection of fundamental rights against violation by state governments lies in the Fourteenth Amendment's "privileges or immunities" clause. That's a good example of in-chambers stare decisis: Having written separately in McDonald,…

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