Decision highlights Supreme Court misconceptions

By MITCH KOKAI
Carolina Journal
Posted 7/15/22

The U.S. Supreme Court’s recent decision in a high-profile abortion case has exposed widespread ignorance about the court and its role.

Use of the word “ignorance” is not …

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Decision highlights Supreme Court misconceptions

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The U.S. Supreme Court’s recent decision in a high-profile abortion case has exposed widespread ignorance about the court and its role.

Use of the word “ignorance” is not intended as an insult. We are all ignorant about most of the world around us. That’s true even for intelligent, highly educated experts. Socrates had a great line: “The only true wisdom is in knowing you know nothing.”

Only a small percentage of political observers can cite details of the Supreme Court’s major decisions and doctrines. That’s fine. Few of us need to know those details in order to conduct our daily lives.

But the ignorance can lead to harmful misconceptions.

In terms of the case Dobbs v. Jackson Women’s Health Organization, the largest misconception involves the Supreme Court’s power to determine whether a woman can secure an abortion.

Roe v. Wade, the landmark 1973 abortion decision, did not make abortion legal at all times and under all circumstances. It placed new limits on a government’s ability to restrict abortion access. The later case Planned Parenthood v. Casey adjusted those limits again.

Just as Roe didn’t make all abortions legal, Dobbs hasn’t suddenly made them illegal. The Supreme Court’s decision has returned decisions about abortion to the states. Some will enact new restrictions. Some will do nothing to change the status quo. Others, including North Carolina, are likely to see political battles over changing rules for the controversial procedure.

Beyond this basic misconception about Dobbs’ impact, others deserve attention.

Some observers have latched on to an opinion in the case from the court’s longest-serving member, Justice Clarence Thomas.

One Raleigh-based television reporter tweeted, “Justice Thomas seems pretty explicit here in today’s concurrence that he thinks we should have fewer rights.”

That quip likely results from the following line: “in future cases, we should reconsider all of this Court’s substantive due process precedents.” Thomas specifically mentions precedents linked to contraception, sodomy laws, and same-sex marriage.

“Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

It’s unfortunate that the reporter, and many others across the country, failed to consider the next part of Thomas’ opinion. “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.”

Thomas isn’t saying “he thinks we should have fewer rights.” He’s saying he believes the Supreme Court has been wrong in the past to base constitutional rights on a doctrine known as “substantive due process.”

Ignorance of this doctrine makes sense for most people. Yet Thomas offers some clues about the doctrine for those who wish to learn.

The 14th Amendment to the U.S. Constitution says no state shall “deprive any person of life, liberty, or property without due process of law.” “Considerable historical evidence indicates that ‘due process of law’ merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property,” Thomas writes.

The Supreme Court has ventured beyond that definition. It has ruled that the Due Process Clause applies to more than just legal process. It offers “substantive” guarantees of particular rights.

Thomas disagrees with that approach. “As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he writes. “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”

“Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion,” he added.

Thomas’ colleagues did not follow him down that legal path. Substantive due process remains an active legal doctrine — one that has adherents and detractors among right-of-center legal thinkers, let alone within the broader legal community.

The court’s most senior justice wants colleagues to re-examine this legal theory, not engage in a campaign to end rights.

Relatively few people know details of the legal skirmish over substantive due process. Few need to know. But it helps to have at least a basic understanding of the issue to place Thomas’ recent commentary in context.

Exposing one’s ignorance of the topic does little to enlighten the debate about Roe and Dobbs.

Mitch Kokai is senior political analyst for the John Locke Foundation.

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