Today, the left ties itself into knots over whether it should defend sexual minorities, dismantle the carceral state, or fight for social democracy. Because it “does not secure any substantive rights,” he writes, “it does not secure a right to abortion.” The same goes for birth control, same-sex sexual conduct, and gay marriage. Wade, Thomas calls substantive due process an “oxymoron” and a “legal fiction.” The due-process clause “guarantees process” only. Jackson Women’s Health Organization, which overturned Roe v. Thomas rejects the entire idea of substantive due process. Liberals say abortion conservatives say guns. Most liberals and conservatives accept some version of this second interpretation-which is called “substantive due process”-but argue over which rights it protects. Among those rights is privacy, from which derive the rights to contraception and so on. The state should not take them away at all-unless it must. It’s not enough for the state to dot its “i”s and cross its “t”s before it takes those rights away. Doesn’t it simply require that the state declare the law, set out a punishment for violating the law, charge a suspect for its violation, try him in court, and so on? That, as it happens, is Thomas’s view.īut there’s a second, more expansive, interpretation of the clause, which holds that certain rights are so intrinsic to “liberty,” so fundamental to what it means to be free, that they may never be abridged without a vital reason. To some, it might seem strange that the clause contains an affirmative right to anything. The due-process clause, which prohibits the state from depriving anyone of “life, liberty, or property, without the due process of the law,” is the basis for the constitutional right to contraception, same-sex sexual conduct, same-sex marriage, and, until a few weeks ago, abortion. New Yorker writers answer questions about what comes next for reproductive rights. In Thomas’s view, that misreading is a stain on the nation-and the reason for its fall. One is the due-process clause, which Thomas believes has been misread. Like so much else in this country, the largeness of Thomas’s vision hinges on the smallest of claims: two clauses, all of thirty-eight words, in the second sentence of the Fourteenth Amendment. Increasingly, it’s Clarence Thomas’s America. It’s no longer a matter of Clarence Thomas’s Court. The most powerful Black man in America, Thomas is also our most symptomatic public intellectual, setting out a terrifying vision of race, rights, and violence that’s fast becoming a description of everyday life. Yet Thomas’s significance far outstrips his captaincy of the Court’s war on liberalism. Even Thomas’s extraordinary claims, in a concurring opinion three years ago, about the racist foundations of abortion and birth control, found their way into a footnote in the Court’s recent abortion decision.ĭespite this track record of stealth and success, liberals have often dismissed Thomas as stupid or a sellout, a patsy and a puppet, the Justice who cannot speak. In 1997, Thomas signalled his belief that the Second Amendment protects an individual’s right to bear arms, a fringe position that the Court would come to accept, eleven years later, in District of Columbia v. His opinions on campaign finance, once seen as recklessly deregulatory, now command a majority. For years, Thomas pulled Justice Antonin Scalia-even, on occasion, Justice Anthony Kennedy and Chief Justice William Rehnquist-to the right on issues of crime and punishment. Insiders have long known that Thomas is the right’s pacesetter on the Court, laying out positions that initially seem extreme yet eventually get adopted.

On television and across the Internet, commentators took notice. Wade, Thomas recommended that the Court, as a next move, strike down a half century’s worth of “demonstrably erroneous” precedents establishing the right to contraception, the right to same-sex sexual conduct, and the right to same-sex marriage. Writing in support of the Supreme Court’s decision to overturn Roe v. On Friday, June 24th, Justice Clarence Thomas got something he’s sought his entire adult life: recognition.

List of substantive due process rights