In the aftermath of last Friday’s historic US Supreme Court decision in Dobbs versus Jackson Women’s Health Organisation reversing its own 1973 ruling in Roe versus Wade, much attention focused on a concurring opinion by Justice Clarence Thomas in which he seemed to suggest he wanted to go much further.
This is what Justice Thomas said (page 119 of the PDF), with my emphasis added:
For that reason, 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,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
The three cases Thomas cites – Griswold, Lawrence, and Obergefell – are notable because they established constitutional rights to privacy (Griswold v Connecticut), a ban on prohibitions on Sodomy (Lawrence v Texas) and a right to gay marriage (Obergefell v Hodges).
But note that Thomas is not objecting to those cases, or at least to their outcomes. He is, instead, objecting to the legal reasoning underpinning those decisions – substantive due process. In fact, note the last line in the widely quoted section above: “We should consider whether any other rights announced in this court’s substantive due process cases are “privileges or immunities of the citizens of the United States protected by the Fourteenth Amendment”.
What Thomas is saying here is not that he would abolish the rights listed above, but that those rights were established using (in his view) faulty legal reasoning, and that he would likely – or at least, possibly – find those same rights elsewhere.
To help understand this further, here are some explanations:
What is Substantive Due Process?
Substantive Due Process is an American legal theory which says that the courts may protect unenumerated rights – that is to say, rights not specifically listed in the constitution – under the 14th Amendment phrase “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
In that sentence, there are two clauses: The due process clause, “without due process of law”, and the equal protection clause, “equal protection of the laws”. The second clause – that all citizens deserve equal protection under the law, is relatively uncontroversial. The meaning of the first – due process of law – has been disputed for years.
“Substantive due process” is a theory which holds that the sentence “nor shall any state deprive any person of life, liberty, or property, without due process of law” means that in most cases the Government may not deprive a person of life, liberty, or property without very good reason indeed, and that the court may identify and decide which rights fall under that category. Justice Thomas, and those who agree with him, argue that it means just what it says: That there must be a legal process before any rights are abridged. Further, Thomas objects to the idea that the Court can, as it did in these cases, simply decide which new rights it will grant on a case by case basis.
If we use the example of Gay Marriage, this is what the court said in Obergefell v Hodges:
Under the Due Process Clause of the Fourteenth Amendment, no State shall “deprive any person of life, liberty, or property, without due process of law.” The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition, these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479, 484–486 (1965). The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.
It is, in essence, the two sentences in bold with which Thomas disagrees: He believes that the liberties in the constitution are those listed in it, and that Judges should not be free to simply invent – as he sees it – new ones. Further, he disagrees that it is the job of courts to “identify” new rights, like abortion, contraception, gay marriage, and so on.
Is Justice Thomas’s view extreme?
It is worth saying here that whether Justice Thomas’s views are extreme is a subjective matter, but it is objectively true that they are not shared by many of his contemporaries. For example, the late Justice Antonin Scalia, his closest ally on the Supreme Court for 30 years, did not share Thomas’s views about the need to reverse all Substantive Due Process cases, even though he was also critical of the doctrine. Nor did any other member of the court join Thomas’s opinion on Friday.
At the same time, it is worth mentioning that Thomas’s views on due process and his race as the court’s only current black member are inextricably linked. “Substantive Due Process” was first used in the infamous “Dredd Scott” case, in which the court “identified” a right to own a slave. Thomas regularly cites it as an example of how Judges can use their “duty” to find new rights as a way to impose their personal views.
What is a concurring opinion?
A concurring opinion is generally written by a Judge who agrees with the court’s decision, but not necessarily its reasoning. Or, sometimes, as in this case, by a Judge who agrees with the opinion and the reasoning, but would also include other reasons, or go further than the court has.
Does a concurring opinion have any legal effect?
No. While a concurring (or dissenting) opinion may be cited later by others, it does not create any precedent or obligation for any court.
Does Thomas specifically object to marriage, contraception, and legal homosexuality?
We do not know, is the answer to this question. The most extreme interpretation of what he is saying is that these matters should be decided by voters, not courts, just like abortion. But he also notes, as above, that there may be other legal rights to gay marriage and legal homosexuality under the equal protection clause – IE, if the state lets a straight person marry, it must let a gay person marry, and so on.
Are these laws and precedents in danger?
There is no real evidence that they are. No other judge on the court signed on to Thomas’s opinion. Nor have any of his colleagues, at any time, publicly shared similar views on abolishing all substantive due process cases.
Indeed, both the main opinion, and a separate concurring opinion by Justice Kavanaugh are at pains to point out that the decision in Dobbs does not indicate any willingness by the court to reverse these other precedents.