Roe v Wade Overturned

Not really. He was ready to uphold 15 weeks.

 

Thomas’s concurrence is written more for the sake of academic debates (or navel gazing, depending on how you view it).

His argument isn’t, per se, that there absolutely should not be protections for any of those things. It’s that the entire framework that recognizes those protections was built around substantive due process, which he has long argued is a legal fiction that the Court built (because they were too scared to overrule the Slaughterhouse Cases and consider those kinds of issues in the context of the privileges & immunities clause where he thinks they were supposed to be considered) and doesn’t actually exist in the first place.

In the context of this decision his concurrence makes an easy target for liberals to say “see, here’s what’s next,” but he pretty consistently files his own opinion in substantive due process cases to say there’s no such thing as substantive due process and we should abandon that framework entirely.

 

Citing himself, J Thomas wrote separately to hold that the Due Process clause does nothing other than ensure people get the right to procedural process; it does not create a substantive liberty right:

I write separately to emphasize a second, more funda[1]mental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evi[1]dence indicates that “due process of law” merely required executive and judicial actors to comply with legislative en[1]actments and the common law when depriving a person of 2 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION THOMAS, J., concurring life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judg[1]ment). Other sources, by contrast, suggest that “due pro[1]cess of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” United States v. Vaello Madero, 596 U. S. ___, ____ (2022) (THOMAS, J., con[1]curring) (slip op., at 3) (internal quotation marks omitted). Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what pro[1]cess is provided.” … As I have previously explained, “substantive due process” is an oxymoron that “lack any basis in the Constitution … Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.

IN OTHER WORDS, HE JUST HELD THAT THE 14TH AMENDMENT IS A NEUTERED, MEANINGLESS OXYMORON. According to Thomas, if you run through the steps and dot your “i’s” (like the Russian prosecution of those who oppose Putin), that is enough.

He then goes on to write that the cases upholding gay rights, interracial marriage rights, and the right to use contraceptives, WERE ALL WRONGLY DECIDED. He welcomed the opportunity to reverse those “wrongly decided” cases.

 

I think you didn’t read his concurrence carefully, because he said he would reverse those cases — according to him, there is no CONSTITUTIONAL RIGHT to gay marriage, interracial marriage, or the right to acquire contraceptives. There was nothing academic about it: he told us exactly where he stood and why - he does not believe there is such thing as “substantive due process”

 

Cant believe people are still getting mileage out of "these guys wont actually do it, its just talk." Do you even believe this?

 

It’s all academic because no one on the Court has ever agreed with him on it, but his take on substantive due process isn’t that the 14th Amendment as a whole does nothing more than guarantee procedural process, it’s that the due process clause of the 14th Amendment does nothing more than guarantee procedural process.

He thinks that the privileges & immunities clause is what incorporates substantive rights, and that the Court should overturn Slaughterhouse and analyze substantive rights in the context of the privileges & immunities clause rather than try to twist the due process clause into covering questions that, in his opinion, were supposed to be governed by the P&I clause.

 

Interestingly substantive due process along equal protection was part of the court's rationale in Loving v. Virginia. Were it not for that decision, Thomas's own marriage wouldn't be recognized in Virginia and several other states and in fact he and Ginni (I support the big lie and the January 6th attack on the Capitol) could have been prosecuted prior to Loving. Also interestingly, the Court in Obergefell cited Loving as precedent.

 

I suspect Thomas would find that a right to abortion was not understood to be a “privilege or immunity” of citizenship, was just noting that the actual gist of his opinion is that the Court is applying the wrong test altogether.

 

While I am sorry to see some states take this extreme position, I will still never vote for a democrat as long as they have extreme leftists like the squad with the power they have. I really don’t want Trump either but will if a moderate isn’t available.

 

I can’t speak for him, but my guess would be that he probably thinks the reasoning in Loving (but not the result) was wrong.

 

Again, I disagree with you because he very plainly says there is no “constitutional” basis for such rights, not just no 14th amendment right.

And then, laughably, Kavanigh writes that nobody should be concerned about the trampling of the right to marriage (gay, straight or interracial) by this decision, even though his own colleague expressly said that he’d reverse those rights.

 

Exactly. And maybe that’s his motivation here …

 

As do a number of persons on the extreme right, he probably also believes the Brown v. Board of Education is inconsistent with the Constitution.

 

So you won't vote for any Democrats because of 4 of their more "extreme" members of Congress (not from your district and none of them in leadership) but have no problem voting for Republicans despite MTG, Boebert, Biggs, Jordan, Gaetz, etc.? Even as their Governors and Legislatures as a whole are passing bills you view as extreme?

 

No. He thinks the decision was wrong, and the issue should be left to each State to decide BECAUSE HE THINKS THERE’S NO CONSTITUTIONAL RIGHT to marry someone you love.

 

With all due respect, you should read it closer.

The sentence you’re referring to says: “As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lacks any basis in the Constitution.’”

And then he goes on to say:
“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.”

 

Read my next post. The reason he cites himself is because, in every substantive due process case, he files his own opinion to say “there’s no such thing, this is properly a P&I question.”

 

Well no kidding. Note my "how presidential elections work" link.

You blame "dems" for trump winning although they turned out stronger than Republicans, as a whole. That's different than saying dems in swing states didn't turn out. If you're going to deride a class of people, please be specific.

I can equally blame pro-choice Republican voters in swing states for their support of trump and his subsequent rights-denying justices.

 

Not a fact, only a rumor because he thought they could work around Roe. He must have come to the final decision that would be wrong, so this is his final decision on the record.

 

He concurred in the judgment only and filed his own opinion saying that the Court did not need to overturn Roe as a whole to uphold Mississippi’s statute.