Sunday, June 26, 2022

Uncharacteristic Honesty

All hail Clarence Thomas!

That is not sarcasm, but mere exaggeration.  Roe v. Wade was decided on the basis that a fundamental right to privacy was inherent in the due process clause of the Fourteenth Amendment of the U.S. Constitution. In his concurring opinion in Dobbs v. Jackson Women's Health Organization, Associate Justice Clarence Thomas wrote

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,” … we have a duty to “correct the error” established in those precedents …. 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.

By contrast, in the majority opinion, signed onto by three other Justices, Samuel Alito argued

And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

In the New York Times' annotated transcript of this forced-birth ruling, Charlie Savage and Sheryle Gay Stolberg explain

The claim by Justice Alito that this ruling does not jeopardize other modern-era rights that derived from the same legal reasoning — like sex between consenting adults of the same sex and the right of same-sex couples to marry —has been widely criticized as unpersuasive since the time it appeared in the leaked draft. After all, matters like rights for same-sex couples have no deep historical basis and, in some people’s minds, also raise critical moral questions.

Justice Thomas, in his concurring opinion, took aim at three other landmark cases that relied on that same legal reasoning: Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry.

The Alito gang's feeble effort at assurance should be read in light of the statements  they made about Roe v. Wade at their confirmation hearings.  As Robert Reich points out in the video below. Gorsuch said "it is a precedent;" Kavanaugh, "it has been reaffirmed many times;" Barrett pled "I don't have any agenda to try to overrule Casey" (the 1992 decision that weakened Roe). And of course, there is Alito: "The courts in general should follow this past precedence" and "it's important because it limits the power of the judiciary."

Alito et al. also never actually denied that they would vote to upend the rights established in Griswold, Lawrence, or Obergefell. The majority opinion could have been worded "Nothing in this opinion accurately understood would cast doubt on precedents that do not concern abortion." Instead, it was phrased as "nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."

Of course, in their opinion, it should not because that would be make it clearer to liberals and moderates that other constitutional rights are up for grabs. The Alito Four realize that would exacerbate the outrage over Dobbs and jeopardize the opportunity of the GOP this November o retake Congress and increase its dominance in state legislatures (also, manifested differently, a factor with Chief Justice Roberts). 

No doubt Clarence Thomas has a similar concern. However, he expresses more honestly his priorities. For him, well, the right-wing agenda takes precedence.

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