A long-awaited moment for staunch Roe opponent Thomas

Asia's Tech News Daily

WASHINGTON – Judge Clarence Thomas said at his Supreme Court confirmation hearings in 1991 that he hadn't given that much thought to whether Roe v. Wade was correctly decided.

But Justice Clarence Thomas took only months to reach a conclusion: the landmark 1973 ruling guaranteeing a woman's right to abortion should be discarded.

“The power of a woman to abort her unborn child” is not a liberty protected by the Constitution, said a dissenting opinion from four members of the court, including Thomas.

Thus began three decades of official Thomas opposition to the notion of a constitutionally protected right to abortion.

It will reach its zenith Wednesday, when Thomas and the most conservative Supreme Court in decades will consider a restrictive Mississippi abortion law that opponents and advocates alike agree is almost impossible to square with Roe and the precedents that have flowed from it.

The review coincides as well with something of a high-water mark for the 73-year-old Thomas, now the court's longest-serving member. He sits on a court with more justices who think like him than at any other point in his career.

These days, his colleagues offer unprecedented deference. After years of not asking questions at oral arguments, Thomas this term has asked the first question in every hearing. That is because no one jumps in until he has finished his low-key inquiries.

His seniority on the court means that he decides who writes the court's opinion when he is in the majority and Chief Justice John Roberts Jr. is on the losing side. That is a bit more commonplace now as the court has grown more conservative. With five justices to his right, Roberts's vote is no longer always key.

Thomas's influence has grown outside the courtroom as well. His former clerks – there are more than 125 of his “kids,” as Thomas calls them – held many high-ranking positions in the Trump administration, including for a time the role of the administration's top lawyer at the Supreme Court. Ten have lifetime appointments in the federal judiciary.

One of those former clerks, recently hired Mississippi Solicitor General Scott Stewart, will be arguing the case for the state's law, which prohibits almost all abortions after 15 weeks, months earlier than the court's current abortion precedents allow.

If the court reaches the question of whether Roe should be overturned, Stewart will not have to worry about at least one vote.

“Our abortion precedents are grievously wrong and should be overruled,” Thomas wrote in a dissenting opinion in 2020. The case concerned restrictions on abortion clinics and the doctors who perform the procedure, whom Thomas repeatedly referred to as “abortionists.”

“The Constitution does not constrain the States' ability to regulate or even prohibit abortion,” he added.

It is one of many times Thomas has written on the subject, as Senate Minority Leader Mitch McConnell, R-Ky., noted last month when he gave the keynote speech for a celebration of Thomas's 30 years on the Supreme Court.

“Take his jurisprudence on unborn life,” McConnell said at the conclusion of a day-long retrospective of his Supreme Court tenure sponsored by conservative groups.

“Every time without fail, Justice Thomas writes a separate, concise opinion to cut through the 50-year tangle of made-up tests and shifting standards and calmly reminds everybody that the whole house of cards lacks a constitutional foundation,” McConnell said.

Thomas has written that Roe cannot be sustained because the Constitution is silent on the subject of abortion. He has complained that the court bends its own rules and procedures to protect Roe and 1992's Planned Parenthood v. Casey, which reaffirmed the right and was the decision Thomas objected to in his first term on the court.

In 2019, he related abortion to eugenics, praising an Indiana law that would have made it illegal for someone to perform an abortion because of the fetus's race, sex, disability or diagnosis of Down syndrome.

“Each of the immutable characteristics protected by this law can be known relatively early in a pregnancy, and the law prevents them from becoming the sole criterion for deciding whether the child will live or die,” Thomas wrote.

“Put differently, this law and other laws like it promote a state's compelling interest in preventing abortion from becoming a tool of modern-day eugenics.”

While the rest of the court wanted additional lower courts to weigh in on similar laws in other states, Thomas warned: “Although the Court declines to wade into these issues today, we cannot avoid them forever.”

“In terms of abortion, Justice Thomas is the tip of the spear,” said Thomas Goldstein, a lawyer who frequently argues before the court and was a founder of SCOTUSblog, which closely chronicles the court's every move. “He is a driving force for overruling Roe v. Wade. And that position will make a decision that doesn't go so far and instead cuts back on Roe seem pretty modest.”

If other justices say the court's precedents must be respected and overturned in the rarest of occasions, Thomas is an exception the other way.

“In my view, if the Court encounters a decision that is demonstrably erroneous – i.e., one that is not a permissible interpretation of the text – the Court should correct the error, regardless of whether other factors support overruling the precedent,” he wrote in 2019.

As a result, Thomas is the court's most prolific justice when it comes to writing solo opinions that call for reconsidering the court's precedents.

At the symposium on Thomas's jurisprudence, Notre Dame law professor Nicole Stelle Garnett said her fellow Thomas clerks became familiar with it.

“Justice Thomas has since the beginning had a practice of saying, 'In an appropriate case, I'd reconsider all of American law,' ” Garnett said, to laughter.

Sometimes, the justice's persistence pays off, now that the court's membership has changed. He has complained for years that the court has not taken up challenges of state and local gun control laws that have been upheld despite the court's 2008 ruling that the Second Amendment afforded an individual right to gun ownership in the home for self-defense.

The newly constituted court – with three members chosen by President Donald Trump – agreed and heard arguments last month about the right to carry a weapon outside the home.

His call to reexamine the court's landmark press protection ruling New York Times v. Sullivan is still a minority position, but he has been joined by Justice Neil Gorsuch. Other once lonely positions may attract new support.

In an evaluation of Thomas for NPR at the 20-year mark, Goldstein said Thomas's solo opinions were like “planting flowers in a garden that he thinks are going to bloom a long time from now. And whether that's going to happen is going to depend on the court's membership.”

Ten years later, “I think that Justice Thomas's biggest and boldest constitutional theories are still a long way from being adopted,” Goldstein said. “You can see similar themes in newer decisions – such as rules lowering the bar separating church and state. But the biggest effect of his bold thinking so far has to make other very conservative views seem essentially mainstream.”

Thomas's idiosyncratic views and his resistance to compromise still make him the justice most likely to write a solo opinion. In the term completed last summer, he was in the majority 81 percent of the time – the lowest of all six conservatives and just ahead of the liberal justices.

Thomas has a growing conservative fan base outside of the court – and still also faces stout liberal opposition. His wife Virginia Thomas's conservative activism and closeness with the Trump administration remains a sore point.

Earlier this year, she apologized to Thomas's clerks for a rift that developed among them after her election advocacy of Trump and endorsement of the Jan. 6 rally in the District of Columbia that resulted in violence and death at the U.S. Capitol.

And Thomas's controversial confirmation, almost derailed because of sexual harassment charges by Anita Hill, is hardly forgotten.

“I still believe Anita Hill,” protesters yelled this fall before Thomas gave a speech at the University of Notre Dame.

But these days, Thomas is able to shrug it off.

At the event marking three decades on the court, Thomas said he was celebrating “not because of me but because of you all and what we're trying to defend in this great country.”

“I appreciate the senators who voted for me, all 52 of them,” Thomas said, as the crowd began to laugh. “Hey, all you need is 50.”

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