Yesterday’s decision from the Supreme Court in Gamble v. United States was on the topic of double jeopardy. However, in his concurring opinion, Justice Clarence Thomas took a little detour to criticize precedent on “abortion rights.”
The majority of Thomas’ 17-page concurring opinion discussed the role of precedent in judicial interpretation. Thomas is a textualist who does not hesitate to reject court precedents when necessary, and he made that explicitly clear yesterday.
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas said. “The Constitution’s supremacy is also reflected in its requirement that all judicial officers, executive officers, Congressmen, and state legislators take an oath to ‘support this Constitution’ … Notably, the Constitution does not mandate that judicial officers swear to uphold judicial precedents.”
Thomas proceeded to call out some of his colleagues on the Supreme Court.
“Members of this Court have lamented the supposed ‘uncertainty’ created when the Court overrules its precedent … As I see it, we would eliminate a significant amount of uncertainty and provide the very stability sought if we replaced our malleable balancing test with a clear, principled rule grounded in the meaning of the text.”
Thomas specifically targeted the Court’s precedent on abortion. For example, he criticized the court’s creation of the “undue burden” standard in Planned Parenthood v. Casey when stating, “The Court’s multifactor balancing test for invoking stare decisis has resulted in policy-driven, ‘arbitrary discretion’ … justifying whatever result five Members of the Court seek to achieve.”
Thomas invoked abortion once again by citing Stenberg v. Carhart, a 2000 decision that prohibited the states from banning partial-birth abortion (Stenberg was overturned in 2007). He criticized the decision’s creative interpretation of the due process clause and said the court’s “erroneous” precedents have lead to “disastrous ends.”
It was only a few weeks ago in Box v. Planned Parenthood that Justice Thomas wrote another concurring opinion that focused largely (and perhaps obsessively) on ties between abortion and eugenics. Thomas wrote that “Planned Parenthood founder Margaret Sanger recognized the eugenic potential of her cause,” and that “Planned Parenthood President Alan Guttmacher — endorsed the use of abortion for eugenic reasons.” And lest you think this was just a short tangent within a larger argument, know that Thomas referred to eugenics in his opinion over 100 times.
Perhaps Thomas’ recent concurrences are his way of sending a message to his more moderate colleagues on the court. It’s only a matter of time before they must vote on whether to hear one of the numerous “unconstitutional” abortion restrictions that have passed. But regardless of which abortion ban comes before the court first, Justice Thomas has clearly made up his mind.
