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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 […]
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