Norm, I definitely don't think Justice Thomas is a crank. I respect his solo dissents and don't disagree that the gay marriage decision should be reexamined.
However, Thomas' views on substantive due process are considered idiosyncratic and as far as I know, no other Justice shares, or at least articulates, them. That's why those who say they're alarmed by Thomas' concurrence shouldn't be.
TZ, great point on the Privileges and Immunities Clause. I don't expect that Thomas will ever have the opportunity to apply this clause to the issue of gay marriage or to the other cases he would like to reexamine, but it would be fascinating to see what he'd say.
Speculating about this would make for a fascinating post, but one I don't have sufficient expertise to write.
Beauchamp’s observation about “legal handwaving” is accurate, but ipse dixit ends all debate when SCOTUS is its source. If, for example, “death [can be] different,” Ring v. Arizona, 536 U.S. 584, 605–06 (2002), abortion can be too.
Paul—on a Thomas you missed a crucial caveat. Immediately after his criticism of substantive due process he writes “ “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.””
Yes, he does not say for sure that all of these rights would be recognized under P and/or I. And I’m not an experts on his jurisprudence. But my recollection is that he has consistently criticized Slaughterhouse and as he lays out in his opinion, he think basing this stuff in substantive DP instead is both incorrect but also creates intellectual problems because of how it then intersects with equal protection.
So what we should be asking is what this analysis would look like under P&I and whether it would make any difference in practice.
Right to contraception is another right allegedly at risk in the wake of Roe's demise. There is a principle, deeply rooted in common and municipal law, that a person cannot be deprived of liberty or property by a law or government action that is arbitrary and capricious. This principle could be invoked to protect the right to contraception as well as the right to interracial marriage. And given the lack of a victim and the growing acceptance of gay marriage and the cases that uphold it, an attempt to outlaw gay marriage could be considered arbitrary and capricious.
I agree with everything here. It also seems gay marriage rights could seek protection in the Fourteenth Amendment's equal protection clause, which, as a specific protection, needs no deep rooting in anything.
While I agree that the court's gay marriage decision is not up for discussion, I'm writing this comment to take issue with the description of Justice Thomas's position. Thomas is 100% right about substantive due process whether it is being used to strike down New Deal legislation or cloaked in a "penumbra" (what a joke?) and used to enact sometimes sensible and sometimes not social policy by judicial fiat. The fact that we've come to an emperor has no clothes moment on this doesn't mean that Justice Thomas should be criticized in any way. His view is the correct one of what the court's jurisprudence should be and it's helpful, not cranky as this post and the WSJ editorial today implies, to have someone with the guts to point it out.
Guess what: he won't get invited to DC dinner parties, but neither will the conservative judges who don't point it out. In for a penny, in for a pound.
Thanks for these comments.
Norm, I definitely don't think Justice Thomas is a crank. I respect his solo dissents and don't disagree that the gay marriage decision should be reexamined.
However, Thomas' views on substantive due process are considered idiosyncratic and as far as I know, no other Justice shares, or at least articulates, them. That's why those who say they're alarmed by Thomas' concurrence shouldn't be.
TZ, great point on the Privileges and Immunities Clause. I don't expect that Thomas will ever have the opportunity to apply this clause to the issue of gay marriage or to the other cases he would like to reexamine, but it would be fascinating to see what he'd say.
Speculating about this would make for a fascinating post, but one I don't have sufficient expertise to write.
Beauchamp’s observation about “legal handwaving” is accurate, but ipse dixit ends all debate when SCOTUS is its source. If, for example, “death [can be] different,” Ring v. Arizona, 536 U.S. 584, 605–06 (2002), abortion can be too.
Paul—on a Thomas you missed a crucial caveat. Immediately after his criticism of substantive due process he writes “ “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.””
Yes, he does not say for sure that all of these rights would be recognized under P and/or I. And I’m not an experts on his jurisprudence. But my recollection is that he has consistently criticized Slaughterhouse and as he lays out in his opinion, he think basing this stuff in substantive DP instead is both incorrect but also creates intellectual problems because of how it then intersects with equal protection.
So what we should be asking is what this analysis would look like under P&I and whether it would make any difference in practice.
Right to contraception is another right allegedly at risk in the wake of Roe's demise. There is a principle, deeply rooted in common and municipal law, that a person cannot be deprived of liberty or property by a law or government action that is arbitrary and capricious. This principle could be invoked to protect the right to contraception as well as the right to interracial marriage. And given the lack of a victim and the growing acceptance of gay marriage and the cases that uphold it, an attempt to outlaw gay marriage could be considered arbitrary and capricious.
I agree with everything here. It also seems gay marriage rights could seek protection in the Fourteenth Amendment's equal protection clause, which, as a specific protection, needs no deep rooting in anything.
While I agree that the court's gay marriage decision is not up for discussion, I'm writing this comment to take issue with the description of Justice Thomas's position. Thomas is 100% right about substantive due process whether it is being used to strike down New Deal legislation or cloaked in a "penumbra" (what a joke?) and used to enact sometimes sensible and sometimes not social policy by judicial fiat. The fact that we've come to an emperor has no clothes moment on this doesn't mean that Justice Thomas should be criticized in any way. His view is the correct one of what the court's jurisprudence should be and it's helpful, not cranky as this post and the WSJ editorial today implies, to have someone with the guts to point it out.
Guess what: he won't get invited to DC dinner parties, but neither will the conservative judges who don't point it out. In for a penny, in for a pound.