In Halliburton Co. v. Erica P. John Fund, Inc., Justice Thomas concurred separately to explain that principles of stare decisis should not apply to judge-made common law.
In support of its decision to preserve Basic, the majority contends that stare decisis “has ‘special force’ ‘in respect to statutory interpretation’ because ‘Congress remains free to alter what we have done.’” Ante, at 12 (quoting John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 139 (2008); some internal quotation marks omitted). But Basic, of course, has nothing to do with statutory interpre tation. The case concerned a judge-made evidentiary presumption for a judge-made element of the implied 10b−5 private cause of action, itself “a judicial construct that Congress did not enact in the text of the relevant statutes.” Stoneridge, supra, at 164. We have not afforded stare decisis “special force” outside the context of statu- tory interpretation, see Michigan v. Bay Mills Indian Community, 572 U. S. ___, ___, n. 6 (2014) (THOMAS, J. dissenting) (slip op., at 15, n. 6 and for good reason. In statutory cases, it is perhaps plausible that Congress watches over its enactments and will step in to fix our mistakes, so we may leave to Congress the judgment whether the interpretive question is better left “‘settled’” or “ ‘settled right,’ ” Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986). But this rationale is untenable when it comes to judge-made law like “implied” private causes of action, which we retain a duty to superintend. See, e.g., Exxon Shipping Co. v. Baker, 554 U. S. 471, 507 (2008) (“[T]he judiciary [cannot] wash its hands of a problem it created . . . simply by call ing [the judicial doctrine] legislative”). Thus, when we err in areas of judge-made law, we ought to presume that Congress expects us to correct our own mistakes—not the other way around. That duty is especially clear in the Rule 10b–5 context, where we have said that “[t]he federal courts have accepted and exercised the principal responsi bility for the continuing elaboration of the scope of the 10b–5 right and the definition of the duties it imposes.” Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U. S. 286, 292 (1993).
Basic’s presumption of reliance remains our mistake to correct.
In other words, when the Court makes a mistake, the Court must fix it.
The majority, per Chief Justice Roberts, characterizes this brand of stare decisis as adhering to statutory interpretation;
The principle of stare decisis has “‘special force’” “in respect to statutory interpretation” because “‘Congress remains free to alter what we have done.’” John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 139 (2008) (quoting Patterson v. McLean Credit Union, 491 U. S. 164, 172–173 (1989)). So too with Basic’s presumption of reli- ance. Although the presumption is a judicially created doctrine designed to implement a judicially created cause of action, we have described the presumption as “a sub- stantive doctrine of federal securities-fraud law.” Amgen, supra, at ___ (slip op., at 5). That is because it provides a way of satisfying the reliance element of the Rule 10b–5 cause of action. See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U. S. 336, 341–342 (2005). As with any other element of that cause of action, Congress may overturn or modify any aspect of our interpretations of the reli- ance requirement, including the Basic presumption it- self. Given that possibility, we see no reason to exempt the Basic presumption from ordinary principles of stare decisis.
Thomas also weighs in on the value of Congressional inaction in the context of judge-made law. No presumptions should be drawn:
Contrary to respondent’s argument (the majority wisely skips this next line of defense), we cannot draw from Congress’ silence on this matter an inference that Con gress approved of Basic. To begin with, it is inappropriate to give weight to “Congress’ unenacted opinion” when construing judge-made doctrines, because doing so allows the Court to create law and then “effectively codif[y]” it “based only on Congress’ failure to address it.” Bay Mills, supra, at ___ (THOMAS, J., dissenting) (slip op., at 14). Our Constitution, however, demands that laws be passed by Congress and signed by the President. U. S. Const., Art. I, §7. Adherence to Basic based on congressional inaction would invert that requirement by insulating error from correction merely because Congress failed to pass a law on the subject. Cf. Patterson, supra, at 175, n. 1 (“Congressional inaction cannot amend a duly enacted statute”).