“Correcting the error,” as Thomas put it, would have dramatic implications for American life. Without Griswold, states would be free to ban contraception, even for married couples. Without Lawrence, police could arrest people for engaging in sexual activity previously outlawed by so-called “sodomy laws.” (Though this would primarily affect people in same-sex relationships, it could also conceivably apply to a significant number of heterosexual couples as well.) And without Obergefell, states would once again be free to deny Americans the right to unite themselves in marriage to the person they love.
Why would these decisions be imperiled? Alito’s argument against a constitutional right to obtain an abortion rests on the premise that such a right was not firmly rooted in the Anglo-American legal tradition. He cited a chain of legal scholars stretching back to medieval England who viewed abortion as equivalent to homicide—the exact opposite of a right. He also noted that most states criminalized or otherwise banned abortion until the 1960s, suggesting that it was not rooted in the post-revolutionary constitutional firmament of rights either.
“The same could be said, though, of most of the rights the majority claims it is not tampering with,” the liberal justices noted. “The majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives].’ So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”
According to Thomas, it is the latter. He criticized previous generations of justices for establishing rights that weren’t clearly delineated from the Constitution itself. “In practice, the Court’s approach for identifying those ‘fundamental’ rights ‘unquestionably involves policymaking rather than neutral legal analysis,’” he wrote, again citing his past writings. “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.”
Thomas also argued that the court’s approach to substantive due process had caused immeasurable harm to American society. The two examples he cited were Dred Scott v. Sandford, which he described as a substantive due process case, and the court’s abortion jurisprudence, to which he attributed 63 million abortions since 1973. It is unclear how the use of contraception, the decriminalization of same-sex relationships, or the existence of married same-sex couples harms anyone in any way. But that may not be enough to save them.
The court’s defenders might try to reassure Americans by noting that Thomas wrote only for himself, and that Alito’s attempt to distinguish the precedents is the actual opinion of the court. That would be more comforting if Thomas’s previous concurring and dissenting opinions weren’t increasingly turning into the opinion of the court down the road. For years, he complained that his colleagues had let the Second Amendment turn into a “second-class right.” His majority opinion in New York State Rifle and Pistol Association v. Bruen earlier this week aggressively reversed that trend.
Indeed, Alito’s own opinion in Dobbs includes no fewer than nine references to concurring and dissenting opinions written by Thomas himself over the past few decades. And Alito himself has called upon his colleagues in the past to reconsider the scope of Obergefell in particular, arguing that it unfairly singled out Americans who oppose same-sex marriage as bigots and did not sufficiently respect their rights to religious freedom.
There is nothing funny about Friday’s ruling. But it is darkly ironic that Alito went to such great lengths to tell Americans that the court’s ruling in Dobbs wouldn’t disturb any other constitutional rights, only for his closest ally on the court to effectively declare open season upon them. Future efforts by the Supreme Court should thus come as no surprise.
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