Much of the 213-page decision overturning abortion rights is concerned with what the justices are really saying.
The conservative majority, through Justice Samuel Alito, promises that this decision poses no risk to other constitutional rights related to bodily autonomy and private relationships. Justice Brett Kavanaugh echoes that vow again in his concurring opinion.
The dissenting liberal justices call nonsense, saying that following the majority’s reasoning to its logical conclusion — that rights are only validated by their explicit presence in the Constitution and historical grounding — means that of course same-sex marriage and contraception are under threat.
Justice Clarence Thomas bothers with none of that. He says outright that the Court should revisit other landmark decisions — naming the cases that protect the right to a same-sex marriage, to conduct private sex acts and to access contraception.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” he writes.
He omits Loving v. Virginia, the case protecting interracial marriage, which is often listed in the same breath with the other three.
“Substantive due process conflicts with that textual command and has harmed our country in many ways,” he writes. “Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.”
It’s a hallmark entry in the “saying the quiet part out loud” category.
The dissenting liberal justices take note.
“The first problem with the majority’s account comes from Justice Thomas’ concurrence—which makes clear he is not with the program,” they write, after pillorying the majority’s insistence that this decision won’t threaten other, related constitutional rights.
“So at least one Justice is planning to use the ticket of today’s decision again and again and again,” they add.