Harm SCOTUS Could Do Versus Harm It's Likely to Do
My latest Verdict column previews the current Supreme Court Term. Yes, I'm aware that the Term is underway, so this is a preview of the cases yet to be argued. You can think of it as also a preview of how the Court will likely rule in cases already argued. I discussed one of the oral arguments from last week on the blog. Professor Vik Amar and I discussed that case and others in a webinar last week as well. (The recording is here.) As I explain in the new Verdict column, this is shaping up to be a pretty sleepy SCOTUS Term. Even the cases that sound juicy are either about technical issues or are interstitial--steps on a path the Court has already laid down.
In the column, I acknowledge the possibility that the Court will decide some important cases on its emergency docket concerning immigration or the midterm election, but I tentatively predict that it won't make much new law. Zooming out to see the big picture, the Roberts Court has already checked off the major items on the right's to-do list: eliminated a right to abortion; outlawed race-based affirmative action; turned gun ownership into a robust constitutional right; mostly dissolved the separation of church and state; and consolidated power in a king-like president. What's left to destroy of the constitutional order?
If you were to ask that question of Justice Thomas, the answer would be a whole lot. If he does not retire before the end of next Term, Justice Thomas will become the longest-serving Justice in U.S. history. (He's already in second place.) During his long tenure on the Court, Justice Thomas has repeatedly called for the overruling of various precedents. In some instances, his colleagues have already obliged. But he would remake the lay of the constitutional land even further. Here are some examples of precedents on Justice Thomas's hit list:
New York Times v. Sullivan is a landmark 1964 ruling that journalists and news organizations cannot be held liable for defamation based on mere inadvertent falsehoods about public figures. It is a vital protection for freedom of the press. Justice Thomas described it and its progeny as "policy-driven decisions masquerading as constitutional law" in his concurrence in the denial of certiorari in McKee v. Crosby in 2019 and has repeated his call for its overruling. Justice Gorsuch jumped on the bandwagon in 2012 (although whereas Thomas invokes the supposed original meaning of the First Amendment, Gorsuch makes claims about changes in the media since 1964).
Employment Division, Department of Human Resources of Oregon v. Smith is a 1990 case holding that the First Amendment's Free Exercise Clause is not implicated by the application of a neutral law of general applicability (there a peyote prohibition) to violations of the law that, in the particular case, happen to be religiously motivated (there in a Native religious ritual). The case was controversial at the time but it coded mostly conservative. Justice Scalia wrote the majority and was joined by the Court's other conservatives except for Justice O'Connor. The liberals dissented, except for Justice Stevens. Since then, however, conservatives have noticed that conservative Christian plaintiffs can be stymied by Smith, and so, in the 2021 case of Fulton v. City of Philadelphia, Justices Thomas and Gorsuch joined Justice Alito's call to overrule Smith. The Court could do so as early as the current Term in St. Mary Catholic Parish v. Roy. However, even if it doesn't, the call to overrule Smith has already succeeded de facto, as the Court now employs an extravagant conception of what counts as impermissible discrimination against religion.
In Dobbs v. Jackson Women's Health Org. (2022), Justice Thomas joined the majority opinion by Justice Alito, which overruled Roe v. Wade and subsequent cases that had found a constitutional right to abortion, but whereas Justice Alito repeatedly asserted that the ruling left in place other constitutional rights that had been recognized under the rubric of substantive due process, Justice Thomas wrote a solo concurrence arguing that "in future cases, we should reconsider all of this Court’s substantive due process precedents," singling out cases recognizing the "right of married persons to obtain contraceptives" (Griswold v. Connecticut), the "right to engage in private, consensual sexual acts" (Lawrence v. Texas), and the "right to same-sex marriage" (Obergefell v. Hodges). He contended that the history-and-tradition-only methodology the majority applied with respect to abortion would also eliminate these rights.
Justice Thomas has also joined two conservative colleagues in calling for reinvigoration of the nondelegation doctrine, has urged elimination of the Bivens doctrine that allows for civil rights suits against federal officers, has urged abandoning the centuries-old dormant Commerce Clause doctrine, has proposed eliminating the void-for-vaguness doctrine, would dramatically cut back on the scope of congressional power to regulate interstate commerce, and has dissented from virtually every decision finding a punishment to be cruel and unusual, calling for abandonment of the notion that the Eighth Amendment should be construed in light of evolving standards of decency.
That's only a partial list. There are many many other cases and lines of doctrine that Justice Thomas would eliminate. Following through on nearly all of them would move constitutional law decidedly to the ideological right. (There are a few exceptions. Justice Thomas would curtail qualified immunity and would require a jury to decide any factual question that can result in a sentence enhancement).
How successful will Justice Thomas be in attracting an additional four votes for his proposals? The answer partly depends on upcoming Senate and presidential elections as well as the timing of future judicial retirements and deaths. Future Republican appointees could join Justice Thomas in many of his endeavors. Future Democratic appointees would resist him. But even without a change in personnel, it is clear that Justice Thomas has already made great headway. He was out front in calling for the overruling some of the landmark liberal decisions that the Court has already overruled. And in various of the areas described above, he has attracted or joined colleagues. To use a memorable image offered by Yale Law Professor Jack Balkin, Justice Thomas has successfully promoted "off the wall" ideas onto "the wall" of constitutional law.
I won't venture a prediction about each of the decisions and doctrines in Justice Thomas's crosshairs, with one exception. There is a concerted campaign being waged by social conservative activists to overturn Obergefell and eliminate the right to same-sex marriage. In a recent interview, Justice Alito said there's "not a realistic prospect" that the Court would overrule Obergefell. That's reassuring, I suppose, but it speaks almost entirely to the intentions of the conservatives, not to any legal principle. Notably, the three liberal Justices who dissented in Dobbs agreed with Justice Thomas that the history-and-tradition approach that wiped out the right to abortion would, if applied the same way, also wipe out the rights to contraception, sexual intimacy, and same-sex marriage.
Justice Alito sat for the interview (with Jan Crawford for Bari Weiss's CBS News) to promote a new book. According to Crawford, who also wrote the puff piece article summarizing the interview that I linked above, Justice Alito argues at some length in his book that same-sex marriage is different from abortion because of the reliance interest in marriage. I haven't read the book. Later this week, Professor Segall will have an essay on this blog titled "I Read Justice Alito's Book so You Wouldn't Have To (And You Shouldn't)," and I'm going to take his advice and not read it. But it's hard to imagine that Justice Alito makes anything resembling a persuasive argument, given that his Dobbs opinion rejected the whole concept of societal reliance on the abortion right. Why would social reliance on the right to marriage be any stronger?
Of course there is concrete reliance on the marriage right by same-sex couples who are already married and who might marry before the Court hands down a decision overruling Obergefell. There's even reliance by people who have made concrete plans to get married--reserving a venue say, or exchanging rings. But if the Court really applied its (awful) Dobbs methodology, it would conclude that all its substantive due process rulings are "egregiously wrong" and seek to unwind them. It could protect concrete reliance and do so with respect to same-sex marriage with something like a three-year prospective three-or-so year phaseout (with is sometimes called a "grandfather clause").
To be as clear as I possibly can, I'm absolutely not proposing that or anything like it. What I'm saying is that despite pretending to be just applying text, history, and tradition in cases like Dobbs, what's really going on is that Justice Alito and the other conservatives think abortion is really really really bad, but they are divided about same-sex marriage. They think LGBTQ+ rights lose in any conflict with even the most extravagant claim of religious liberty, but they don't regard such rights as comparable to the evil of abortion.
At least not yet. If eliminating a right to same-sex marriage or contraception remains an off-the-wall idea promoted only by Justice Thomas, it might nonetheless find its way onto the wall.
-- Michael C. Dorf