Thomas on the End of Roe and the Continuing Despotism of Substantive Due Process

Having already commented upon Justice Samuel Alito’s leaked opinion in Dobbs v. Jackson Women’s Health Organization, the most interesting opinion to discuss now that the decision has dropped is Justice Clarence Thomas’ seven-page concurrence. At the heart of Thomas’ opinion is a brief reflection on liberty and despotism in American government today that transcends narrow legal analysis and implicates the basic principles of American politics. 

It is no wonder journalists scribbled their usual nonsense about Thomas and missed its significance entirely. (Of the dissent, I can charitably say that it more resembles the warbling of the mechanical doll in Tales of Hoffmann than it does jurisprudence.)  

Celebrating 30 years on the Court, Thomas reiterated the Court’s opinion that “there is no constitutional right to abortion” because the “substantive due process” argument that supported Roe v. Wade and Planned Parenthood v. Casey was based on a “farcical” assumption, an “oxymoron.” The due process clause of the 14th Amendment concerns legal process, not “any” (Thomas’ emphasis) substantive rights. (I omit Thomas’ citations of his previous opinions on abortion, which present a rich cornucopia of his abortion jurisprudence. I cannot recommend them strongly enough to the interested reader, who can discover them through citations or links in the complete case.) 

As Thomas notes, and as Alito’s opinion underscores, no other cases involving same-sex marriage, contraception, and sexual activity are affected by this case on the unique instance of abortion. But Thomas nonetheless asks for a reconsideration of all “this Court’s substantive due process precedents.” Then, once these cases are overruled, we can turn to consider whether “the myriad rights” from these cases might be protected by, say, our 14th Amendment’s clause concerning the “privileges or immunities” of American citizens. Of course, this astonishing sweep of the legal horizon is meant to shock his readers.

Thomas then proceeds to explain, briefly, why such a drastic course may be necessary—and really would not be so drastic at all.

It is evident Thomas has brought a gun to a knife fight, having just authored the Court’s opinion in the Bruen open-carry gun case. While he does not make an explicit connection between the Declaration of Independence and the Second Amendment, he uses the founders’ argument about the “inherent right of self-defense” as “central to the Second Amendment right” from his concurring opinion in McDonald v. Chicago. Thus, the two opinions on self-defense and abortion signify the enduring importance of the Declaration of Independence in our lives.

Here is how Thomas would defend basic rights, which reflect natural rights. By contrast, he warns that “substantive due process” threatens basic liberties to the extent of causing “immeasurable” harm. The Court should “eliminate it from our jurisprudence at the earliest opportunity.” He finds “[a]t least three dangers favor jettisoning the doctrine entirely”—privileging judicial powers over the consent of the governed; preferring some rights over others and inventing doctrines favoring some policies over others; and even perverting the purposes of government.

In other words, the cult (my term) of substantive due process attacks liberty and replaces it with despotism. 

In just over three pages Thomas describes how contemporary court decisions, while promising liberty, lead to despotic government. In the United States, this means the erection of an all-powerful administrative state. When the Court uses “substantive due process” to justify a result, they become policymakers rather than judges. They act beyond their authority and therefore in principle against the people. “The Court divines new rights in line with ‘its own, extra-constitutional value preferences’ and nullifies state laws that do not align with the judicially created guarantees,” he writes. 

Abortion jurisprudence is the clearest “exaltation of judicial policymaking.” We see this in an “ethereal ‘right to define one’s own concept of existence, of the meaning, of the universe, and of the mystery of human life.’” (I omit the citations here and elsewhere.) “That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.” 

Second, “[s]ubstantive due process is the core inspiration for many of the Court’s constitutionally unmoored policy judgments.” Laws are said to be “vague,” and some rights become preferred, while others reflect “supposedly lesser values.” Thus, the “abortion industry” cannot suffer even minor regulation, for that would violate women’s rights.  I see such political judgments in the Biden Administration’s recent replacement of equality with “equity”—our political preferences over yours. 

Third, “substantive due process is often wielded to ‘disastrous ends.’” In fact, he traces its development to the Dred Scott case with its defense of slavery. We recall that Chief Justice Roger Taney maintained there was a substantive due process right for a slaveholder to take his property to federal territory.

That argument, of course, was prefaced by his distortion that the Declaration of Independence did not cover blacks. Here Thomas quotes Chief Justice John Roberts from his Obergefell dissent and adds his own concurrence from an affirmative action racial set-aside case: that Dred Scott “was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox,  . . . that overruling was ‘[p]urchased at the price of immeasurable human suffering,’ Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment).”

In Adarand, Thomas confidently maintained, 

There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (‘We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness’).

Is June 24, the date of the Dobbs decision, the new and better date for the “March for Life,” replacing January 22 (Roe)? It certainly offers better weather to celebrate life. But I would suggest that the march now should go to the Lincoln Memorial, not the Supreme Court, after a stop at the Jefferson. 

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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