Thomas’s Moment

Justice Clarence Thomas’s moment has arrived.

His majority opinion in Bruen (the gun rights case), and his concurrence in Dobbs, are drawing considerable attention, and rightly so.

Among many other virtues, his opinions have managed the dual feat of laying out serious legal and constitutional arguments while trolling the left at the same time. This may be my favorite passage in his Bruen majority opinion:

After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” Heller, 554 U. S., at 592, and confrontation can surely take place outside the home. 

Although we remarked in Heller that the need for armed self-defense is perhaps “most acute” in the home, id., at 628, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. See Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012) (“[A] Chicagoan is a good deal more likely to beattacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower”). The text of the Second Amendment reflects that reality.  [Emphasis added.]

Nice little shot at Chicago there.

Second, Thomas invoked the infamous Dred Scott case in both Bruen and Dobbs, with strikingly good effect both times. The left is freaking out, attacking Thomas for supposedly citing Dred Scott approvingly, when he does no such thing. But we know reading comprehension is not a strong suit of leftists.

Here’s the passage in Bruen:

Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford, 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went.” Id., at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America. 

From here Thomas goes on for a short recitation of the strenuous efforts of the Jim Crow South to deprive blacks of weapons to defend themselves. He politely doesn’t mention that it was the Democratic Party behind this disenfranchisement, but the subject is pretty clear.

Now turn to Dobbs:

[S]ubstantive due process is often wielded to “disastrous ends.”  For instance, in Dred Scott v. Sandford, 19 How. 393 (1857), the Court invoked a species of substantive due process to announce that Congress waspowerless to emancipate slaves brought into the federal territories. See id., at 452. While Dred Scott “was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox,” Obergefell, 576 U. S., at 696 (ROBERTS, C. J., dissenting), that overruling was “[p]urchased at the price of immeasurable human suffering,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (THOMAS, J., concurring in part and concurring in judgment). Now today, the Court rightly overrules Roe and Casey—two of this Court’s “most notoriously incorrect” substantive due process decisions, Timbs, 586 U. S., at ___ (opinion of THOMAS, J.)—after more than 63 million abortions have been performed . . .  The harm caused by this Court’s forays into substantive due process remains immeasurable. 

Here you see Thomas explicitly embracing the view long held in the pro-life community that Roe was the formal equivalent of Dred Scott. The liberal dissenters did not take up either of Thomas’s mentions or arguments about Dred Scott. Their silence is telling.

But Thomas’s use of Dred Scott is telling for another reason: more and more constitutional law professors no longer teach the Dred Scott case, because too many law students today find it “triggering.” I wish I was making this up. (Likewise a growing number of criminal law professors now omit teaching rape law, for the same reason.)

There’s much more to be said about Thomas’s attack on substantive due process. You may have heard the breathless and hysterical left say that Thomas is now after same sex marriage (Obergefell), contraception privacy (Griswold), and basic gay rights (Lawrence). That is a deliberate and willful misreading of his argument (though stupidity cannot be ruled out). Here’s the key passage in Dobbs:

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. . .

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. . .  To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. 

This is an invitation for a long overdue consideration of natural rights. It is a long subject, not easily treated here (though we did do more than one podcast about it a while ago). The irony is that the justice most hostile to the project was Antonin Scalia, but the new personnel on the Court may be more amenable to this reorientation of our constitutionalism.

Chaser: one of my favorite passages from the Dobbs dissent by the three liberal Justices:

For overruling Roe, Casey concluded, the Court would pay a “terrible price.” The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up. [Emphasis added.]

I’m having difficulty making out the germ of a legal argument here (once I stop laughing about this ridiculous suck-up). It’s more like a primal scream.

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