Over the past decade or so, a slew of U.S. Supreme Court cases has pushed the institution to the border of broader illegitimacy in the eyes of the public — a hack enterprise willing to use any and all tools at its disposal to fuel its partisan, right-wing agenda. Among those cases, one stands above all: Dobbs v. Jackson — the reversal of the decades-long precedent in Roe v. Wade that protected the right to an abortion nationwide.
In that 2022 decision, conservatives on the court ruled that there is no inherent constitutional right to an abortion, that it is the states, not the federal government, that can afford that right, if at all.
In a concurring opinion, Justice Clarence Thomas went even further, attacking the very foundation of many rights established by prior courts: substantive due process as outlined in both the Fifth and Fourteenth Amendments.
“‘Substantive due process’ is an oxymoron that ‘lacks any basis in the Constitution,'” Thomas wrote. Substantive due process is a legal doctrine that allows courts to protect certain rights, even those not explicitly mentioned in the Constitution. Previous courts used this doctrine to protect the rights to same-sex intimacy, same-sex marriage and access to contraception — the Lawrence v. Texas, Obergefell v. Hodges and Griswold v. Connecticut decisions, respectively.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Thomas continued in the concurring opinion. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”