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By Dan Gooding
Associate News Editor
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U.S. Supreme Court Justice Clarence Thomas used a routine bankruptcy case to raise broader doubts about a long-standing legal principle on Thursday, calling on the justices to reconsider a doctrine dating to the 19th century.
In a concurring opinion on a unanimous decision, Thomas said the court should “reexamine” the doctrine of judicial estoppel, which is a rule that bars litigants from taking contradictory positions in different court proceedings. He questioned its legitimacy and historical footing.
“Lower federal courts have applied this doctrine broadly without clear authority to do so,” Thomas wrote, adding that in a future case, “we should reexamine it.”
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What To Know
- What is the doctrine? Judicial estoppel basically stops a party from telling one story in court to win and then flipping that story later when it suits them.
- Why does Thomas want to reexamine it? He says it’s shaky law built more by judges over time than by the Constitution or Congress, and questions why courts rely on it so heavily.
- What could it mean for Americans? If the Court scales it back, people who made earlier legal mistakes might still get their day in court, but it could also make it harder to crack down on inconsistent or misleading claims.
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What Case Was About
The case, Keathley v. Buddy Ayers Construction, arose from a dispute over whether a man who failed to disclose a potential lawsuit during bankruptcy proceedings could later pursue that claim in court.
Thomas Keathley filed for Chapter 13 bankruptcy in 2019, agreeing to repay creditors in full over time. While the bankruptcy case was still open, he was involved in a car accident and retained a lawyer to bring a personal injury claim but did not disclose that claim to the bankruptcy court.
When he later filed a lawsuit, the defendant company argued that the case should be thrown out under judicial estoppel, which is meant to prevent litigants from contradicting earlier sworn positions.
Lower courts sided with the company, finding that Keathley’s failure to disclose the claim could not be considered an “inadvertent” mistake under existing Fifth Circuit precedent.
What Supreme Court Decided
In a unanimous opinion written by Justice Ketanji Brown Jackson, the Court overturned the ruling, rejecting the Fifth Circuit’s rigid test.
The lower court had focused narrowly on two factors: whether the debtor knew about the claim, and whether they had a motive to conceal it, but the justices said that approach was too limited.
The majority said:
- Judicial estoppel is an “equitable doctrine,” meaning it is supposed to be flexible and fact-driven rather than mechanical.
- Courts must avoid rigid formulas and instead evaluate each case individually.
Justice Sonia Sotomayor, who also wrote a concurring opinion, agreed fully with the outcome but sharpened the reasoning around how the doctrine should function in practice. She warned that rigid rules risk applying judicial estoppel too aggressively, even where a mistake was honest.
Sotomayor also said that the Fifth Circuit's approach was effectively a "one-size-fits-all" rule, which allowed courts to infer bad intent too easily.
What is Judicial Estoppel?
Judicial estoppel is designed to protect the integrity of the court system by preventing parties from “deliberately changing positions according to the exigencies of the moment.”
Although it is now widely used in federal courts, Thomas argued that its foundations are surprisingly weak.
According to his concurrence, the doctrine was first recognized in an 1857 Tennessee state court decision, making it roughly 169 years old, but it remained a fringe concept for decades and was not widely adopted by federal courts until much later.
Even as late as the mid-20th century, some courts declined to apply it, with one appeals court noting it had not been embraced by “anything approaching a majority of jurisdictions.”
Despite that history, Thomas said the doctrine has since become “commonplace” in federal litigation—often with little statutory grounding or clear Supreme Court precedent.
He also raised concerns about how broadly it is applied, noting that it can bar claims based on positions taken in entirely separate cases involving different parties.
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Why Thomas’ Concurrence Matters
While no other justice joined his call to reconsider judicial estoppel, Thomas’s opinion signals a continued willingness by the Court’s conservative wing to revisit long-standing legal doctrines, particularly those that are judge-made rather than rooted in explicit constitutional or statutory text.
His argument echoes other times when he has urged the Court to rethink entrenched precedents or doctrines he views as insufficiently grounded in original legal principles.
Though judicial estoppel is not as politically charged as doctrines involved in recent landmark rulings, it plays a significant role in federal courts, especially in bankruptcy, employment and civil litigation.
A future case directly challenging the doctrine could force the Court to decide whether it should continue to exist in its current form—or at all.
What to Know About Thomas' Background
Thomas has served on the Court since 1991, when he was nominated by President George H.W. Bush to replace Thurgood Marshall, becoming the second Black justice in U.S. history. Before joining the Court, Thomas held several key posts, including chairman of the Equal Employment Opportunity Commission and a judge on the U.S. Court of Appeals for the D.C. Circuit, giving him experience in policymaking and federal law.
On the bench, Thomas has become one of the Court’s most consistently conservative voices, often advocating for an originalist reading of the Constitution, interpreting it based on its historical meaning rather than modern policy considerations.
What Happens Next
For now, the Court’s decision leaves judicial estoppel intact but narrows how it can be applied, requiring judges to take a more holistic and fact-specific approach.
Thomas’ concurrence opens the door to a broader reconsideration of the doctrine’s legitimacy, which could have ripple effects across a wide swath of federal litigation if the Court takes up the issue again.
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