If you haven’t read Sam Pfeifle’s excellent July 13 Phoenix cover story on what the renegade conservative U.S. Supreme Court justices might do next, do yourself a favor and read it.
As Pfeifle explains, Justice Clarence Thomas is lobbying his cronies to have the court revisit every decision that depends on substantive due process, the legal principle upon which Roe v. Wade was overturned.
Why attack substantive due process? Because conservatives are biased against women and homosexuals. The same due process clauses in the Fifth and 14th Amendments that were used to establish a woman’s right to privacy, and therefore reproductive free choice, are also the legal foundations of same-sex marriage, indeed same-sex sex.
Thomas lay in wait for decades until enough like-minded judicial activists were appointed to the court to go after gay rights. What strikes me as odd about his obsession with same-sex marriage is that substantive due process is also the basis upon which his own interracial marriage was legalized in Loving v. Virginia back in 1967.
In the Dodd decision overturning Roe, Thomas wrote a concurrence in which he said, “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.’”
One of the creepiest aspects of Thomas’s concurrence is that, in an act akin to legal masturbation, he cites his own prior dissents repeatedly and almost exclusively as the legal basis for his argument for scrapping rights established by the due process clause. This judicial solipsism would be laughable were it not for the fact that the rogue Roberts court has trashed precedent and seems determined to undo a century of American jurisprudence.
The decisions the conservative majority will likely undo are Griswold, the 7-2 decision that established the right to use birth control; Lawrence, the 6-3 decision invalidating sodomy laws that made it a crime to engage in anal intercourse, and Obergefell, the 5-4 decision that required all states to issue same-sex marriage licenses. (Plaintiff Jim Obergefell of Ohio was interviewed by Pfeifle for his Phoenix story.)
But the rightwing radicals on the court probably won’t go after decisions that resulted in laws they happen to agree with. Substantive due process, for example, was the basis of Pierce, the 9-0 decision that established that parents don’t have to send their children to public schools; Moore, the 5-4 decision that established the sanctity of the family unit, and Cruzan, another landmark 5-4 decision that established the right to refuse life-saving medical procedures.
In Thomas, we are talking about a man who never in this world should have been placed on the Supreme Court. He is in no way qualified and, like Trump and Justice Brett Kavanaugh, should have been disqualified for a history of sexual harassment. Now Thomas refuses to recuse himself from cases concerning issues that his wife, conservative busybody Ginni Thomas, lobbies for.
The bottom line is that the private lives of American citizens are none of Thomas’ damn business. But that, of course, is the hypocritical irony of the Trump Republican Party. The GOP now embraces principles that Republicans once opposed. Republicans are now the party of ballooning deficits, big government, and government intervention in the private lives of citizens.
Conservatives are useful on the courts and in the legislatures as a brake on the most extreme progressive urges. But a conservative majority is always a bad thing, an invitation for the walking dead to undo history and to embrace the sexism, homophobia, xenophobia, racism, and white male supremacy of the dim, dumb past.
Edgar Allen Beem has been writing The Universal Notebook weekly since 2003, first for The Forecaster and now for the Phoenix. He also writes the Art Seen feature.