The Supreme Court must revisit and overrule past landmark decisions that legalized the right to obtain contraception, the right to same-sex intimacy and the right to same-sex marriage, conservative Justice Clarence Thomas wrote Friday.
Thomas, in a concurring opinion to the court’s precedent-breaking decision overturning Roe v. Wade and wiping out constitutional protections for abortion rights, said that he would do away with the doctrine of “substantive due process” and explicitly called on the court to overrule the watershed civil rights rulings in Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges.
Griswold was a 1965 Supreme Court decision that established the right for married couples to buy and use contraceptives. It became the basis for the right to contraception for all couples a few years later. Lawrence was a 2003 Supreme Court decision that established the right for consenting adults to engage in same-sex intimacy. Obergefell was a 2015 Supreme Court decision to establish the right for same-sex couples to be married.
The legal reasoning in all three monumental decisions — as well in the two decisions, Roe v. Wade and Planned Parenthood v. Casey, that had prior to Friday established a legal right to abortion care — relied heavily on the doctrine of substantive due process.
“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote. He later called it a “legal fiction” that is “particularly dangerous.”
Substantive due process is a term in constitutional law that essentially allows courts to protect certain rights, even if those rights are not explicitly enumerated in the Constitution. It has been interpreted in many cases to apply to matters relating to the right to privacy — including over matters like love, intimacy and sex — which is not explicitly mentioned in the Constitution.
Conservative jurists have long dismissed the legal reasoning that supported that interpretation of substantive due process. And Thomas, a member of the bench’s conservative wing, made that clear in his writings in Friday’s decision.
“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 wrote.
And because the court, in its ruling Friday, drew heavily on that very idea — that substantive due process is not in the Constitution — Thomas concluded that almost all other precedents that relied on the doctrine should also be overturned.
"I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall 'deprive any person of life, liberty, or property without due process of law.' 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. Such a right is neither 'deeply rooted in this Nation’s history and tradition' nor ‘implicit in the concept of ordered liberty,’” he wrote.
Thomas then went even further, writing that the court, after overruling those particular decisions, should eliminate “substantive due process” altogether.
“In future cases, we should ‘follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away,’” he wrote. “Substantive due process conflicts with that textual command and has harmed our country in many ways."
"Accordingly," he added, "we should eliminate it from our jurisprudence at the earliest opportunity.”
Thomas, who joined the court in 1991 as only the second Black justice in Supreme Court history, dissented in both the Lawrence and Obergefell decisions.
In Friday's opinion, Thomas made no mention of Loving v. Virginia, the landmark 1967 ruling by the Supreme Court that struck down laws prohibiting interracial marriage. That decision relied in part on the substantive due process doctrine — and was cited in several subsequent decisions that did as well, including Obergefell in 2015.
But Thomas, whose wife is white — meaning their interracial marriage could have been deemed in illegal in certain states had the court not ruled the way it did in Loving — did not mention the 1967 decision as one that should be revisited. In their own opinions, Justices Samuel Alito and Brett Kavanaugh both referred to Loving, writing that it should not be revisited despite its reliance on substantive due process.
President Joe Biden, speaking to the nation following the ruling Friday afternoon, specifically addressed Thomas’ analysis, saying it paves an “extreme and dangerous path” that the “court is now taking us on.”
“I’ve warned about how this decision risks a broader right to privacy for everyone," Biden said. "That’s because Roe recognized the fundamental right to privacy and has served as a basis for so many more rights that... we’ve come to take for granted, that are ingrained in the fabric of this country: the right to make the best decisions for your health, the right to use birth control, a married couple in the privacy of their bedroom for God’s sake, the right to marry the person you love."
“Justice Thomas said as much today. He explicitly called to reconsider the right of marriage equality, the right of couples to make their choices on contraception," Biden added.
Thomas' opinion also attracted the ire of prominent civil rights groups, as well as Jim Obergefell, the plaintiff in the 2015 decision that Thomas wants the court to overturn.
"The millions of loving couples who have the right to marriage equality to form their own families do not need Clarence Thomas imposing his individual twisted morality upon them," Obergefell told NBC News in a statement. "If you want to see an error in judgment, Clarence Thomas, look in the mirror."
Sarah Kate Ellis, head of the LGBTQ advocacy group GLAAD, called Thomas’ opinion "a blaring red alert for the LGBTQ community and for all Americans."
"We will never go back to the dark days of being shut out of hospital rooms, left off of death certificates, refused spousal benefits, or any of the other humiliations that took place in the years before Obergefell," Ellis said in a statement. "And we definitely will not go back to the pre-Lawrence days of being criminalized just because we are LGBTQ."
"But that’s exactly what Thomas is threatening to do to the country," Ellis added.