Associate Justice Clarence Thomas poses during a group photo of the Justices at the Supreme Court in Washington, April 23, 2021.
Erin Schaff | Pool | Reuters
Thomas wrote that those rulings “were demonstrably erroneous decisions.”The cases he mentioned are Griswold vs. Connecticut, the 1965 ruling in which the Supreme Court said married couples have the right to obtain contraceptives; Lawrence v. Texas, which in 2003 established the right to engage in private sexual acts; and the 2015 ruling in Obergefell v. Hodges, which said there is a right to same-sex marriage.
Thomas’ recommendation to reconsider that trio of decisions does not have the force of legal precedent, nor does it compel his colleagues on the Supreme Court to take the action he suggested.
But it is an implicit invitation to conservative lawmakers in individual states to pass legislation that might run afoul of the Supreme Court’s past decisions, with an eye toward having that court potentially reverse those rulings.
That is the tack conservative lawmakers took in multiple states, where for years they passed restrictive abortion laws in the hopes that a challenge to them would reach the Supreme Court and open the door for federal abortion rights to be overturned as a result.
That scenario played out on Friday when the Supreme Court, in upholding a Mississippi abortion law that imposed much stricter restrictions on the procedure than those allowed by its 1973 decision in Roe v. Wade, overturned Roe altogether. Also overturned was another case dating to the1990s that made clear there was a constitutional right to abortion.
Thomas, in the concurring opinion that he wrote siding with other conservative justices in voting to overturn Roe, cited the rationale for tossing out that decision as he called for other old cases unrelated to abortion to be reconsidered.
“The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause,” of the U.S. Constitution’s Fourteenth Amendment, he wrote.
That clause guarantees that no state shall “deprive any person of life, liberty, or property without due process of law.”
Thomas argued that the right to abortion under that clause “is neither ‘deeply rooted in this Nation’s history and tradition’ nor ‘implicit in the concept of ordered liberty.’ “
Thomas noted that the three cases he now says should be reconsidered by the court “are not at issue” in Friday’s ruling overturning Roe.
But, he wrote, they all are based on interpretations of the Due Process Clause.
Specifically, he said, they are based on the idea of “substantive due process,” which in a prior case he called “an oxymoron that ‘lack[s] any basis in the Constitution.’ “
Thomas said the idea that the constitutional clause that guarantees only “process” for depriving a person of life, liberty or property cannot be used “to define the substance of those rights.”
While Thomas said that he agreed that nothing in the Roe-related ruling Friday “should be understood to cast doubt on precedents that do not concern abortion … in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
“Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to
‘correct the error’ established in those precedents,” Thomas added.
In a furious dissent to Friday’s ruling, the Supreme Court’s three liberal justices pointed to Thomas’ concurring opinion as one of several dangers to individuals’ rights that flowed from the decision.
“We cannot understand how anyone can be confident that today’s opinion will be the last of its kind,” wrote the liberals, justices Stephen Breyer, Elena Kagan and Sonia Sotomayor,
“The first problem with the majority’s account comes from Justice Thomas’s concurrence — which makes clear he is not with the program,” the dissent said.
“In saying that nothing in today’s opinion casts doubt on non-abortion precedents, Justice Thomas explains, he means only that they are not at issue in this very case,” the liberals continued.
“But he lets us know what he wants to do when they are. ‘[I]n future cases,” he says, ‘we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.’ ” the dissent noted.
“And when we reconsider them? Then ‘we have a duty’ to “overrul[e] these demonstrably erroneous decisions.’ “
“So at least one Justice is planning to use the ticket of today’s decision again and again and again,” the dissent said.