WASHINGTON (CN) — Before the Supreme Court's conservative supermajority struck it off the books last month, the federal right to abortion was known as an unenumerated right. Along with same-sex marriage, contraceptive use and interracial marriage, such rights are not named explicitly within the Constitution but rather inferred from other rights, namely the Due Process clause of the 14th Amendment.
So what's to stop another court from going after other unenumerated rights by employing the same legal framework that was used to overturn Roe v. Wade?
Justice Samuel Alito for one tries to allay that concern in the lead Dobbs v. Jackson Women's Health Organization opinion, taking care to distinguish abortion from other rights, only to have Justice Clarence Thomas pull the rug out.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in concurrence. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
For court watchers, almost as notable as the hit list of cases the conservative justice explicitly names was the one he left out. Loving v. Virginia — which in 1967 established a right to interracial marriage — was cited by every other opinion in the Dobbs case when discussing substantive due process.
“There is a kind of hypocrisy for Justice Thomas to conspicuously omit Loving v. Virginia on the list of cases he thinks were wrongly decided,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in an interview. “The right to interracial marriage was grounded on the same constellation of privacy rights that the court used in cases on contraception, same-sex marriage, and same-sex intimacy.”
Whether omitted by oversight or design, Loving is a case that would have personal implications for the long-serving Black justice. Indeed, Thomas has been married to a white woman since 1987.
Some legal minds have surmised that Thomas may be distinguishing Loving in this context because banning interracial marriage is a clear form of racial discrimination, which the 14th Amendment concerns explicitly. Confirmation of that, however, is unlikely to come.
“Although there may be a principled distinction, Justice Thomas should have said so,” Gostin said. “Simply omitting any discussion of Loving opens him, and the court, to charges of inconsistency and political bias. He owes it to the public and to the legal community to clearly defend his position.”
The Supreme Court is supposed to stand as a neutral arbitrator of the rule of law and protector of the rights guaranteed by the Constitution but court watchers this term say the court’s application of those safeguards is coming up unequal.
“You're seeing the court in a number of areas issue maximalist opinions that provide very sweeping protections and in other cases, they are being very dismissive of core parts of the Constitution,” David H. Gans, director of the human rights, civil rights and citizenship program at the Constitutional Accountability Center, said in a phone call.
One such an opinion that raised eyebrows came out the morning before Dobbs. With Thomas writing for the majority this time in New York State Rifle & Pistol Association v. Bruen, the Supreme Court applied a new Second Amendment framework in a challenge to New York’s concealed carry regulations.
“Justice Thomas went through each precedent and said, ‘no, this one's different because it was too long ago and this one was different because it was too recent and this one was different because it only applied in the western states,’” David Cole, the national legal director at the American Civil Liberties Union, said in a phone call. “He goes through and distinguishes each and every one of those precedents. So he's not being bound by precedent, he's simply distinguishing precedents because they are inconsistent with the result that he wants to reach.”
In other cases where the conservative supermajority expanded religious liberty, however, the justices made no mention of the historical approach that helped them to overturn Roe and expand the Second Amendment.
“There's no history and tradition of allowing state officials to pray publicly while representing the state on the job, as this football coach was doing, and there's no historical precedent for requiring states to support religious schools. And yet that's the result that the court reached in both of these cases,” Cole said. “So history matters when it supports their view, and history is disregarded when it's contrary to their view.”
Birth control and same-sex marriage have taken center stage in the conversation over which rights could be next on the chopping block, but there are many parental rights created by substantive due process that would fall into the same category. Some experts doubt, however, that all of these precedents will be treated equally.
“There's a whole series of cases that were decided much earlier in the 20th century, which involves parental rights, that the [conservative] right might find a little bit problematic to see challenged. But I have to say that I am so very cynical about this court that I think they'll find some reason not to undermine those cases,” Caroline Fredrickson, a distinguished visitor from practice at Georgetown Law and senior fellow at the Brennan Center for Justice, said in a phone interview. “Somehow they’ll say something as completely specious as what Alito said in this case, which is that there's a factual distinction as opposed to the idea that the Constitution is supposed to have some broad principles that govern it.”
The idea that the court can create exceptions to the precedents they set for circumstances that suit them leaves the public at the will of whatever a specific justice believes and not the rule of law.
“It comes down to what I like or don't like as the justice,” Fredrickson said.