Editor’s Note: Jeffrey Toobin is chief legal analyst for CNN and the author of “The Nine” and “The Oath.” The opinions expressed in this commentary are his own. View more opinion on CNN.
“When people show you who they are, believe them.”
The poet Maya Angelou said that to Oprah more than two decades ago, and it’s become an often-repeated quote. But it’s true for Supreme Court justices, too.
Since Clarence Thomas joined the Court in 1991, he’s been its most fervent opponent of Roe v. Wade and the enshrinement of abortion rights. As he wrote in a dissenting opinion just two years ago, “Our abortion precedents are grievously wrong and should be overruled.” Now, reinforced by the addition of three justices appointed by President Donald Trump, the Court has overruled Roe and Thomas’s mission has been accomplished.
In today’s decision in Dobbs v. Jackson Women’s Health Organization, Thomas, in a concurring opinion, made his next goals just as clear: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” Griswold protected the right of married couples to buy birth control; Lawrence prohibited states from criminalizing consensual sex; Obergefell established a national right to same-sex marriage. Thomas is saying – explicitly – what he plans to do. Believe him.
The main reason to believe Thomas is that he has the votes. William Brennan, the great liberal who dominated the heyday of Warren Court in the 1960s, used to quiz his law clerks about the most important rule at the Supreme Court. They would ponder … freedom of speech? … due process of law? The diminutive Brennan would hold up his tiny hand, assert his now-famous “Rule of Five” and say, “Five votes can do anything around here.”
Trump, when running for President, understood the centrality of the Court – and the overturning of Roe v. Wade – to the conservative movement in America. He promised to appoint justices who would vote to overturn Roe, and he delivered – with Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Those three plus Thomas and Samuel Alito (also a longstanding opponent of abortion rights) gave Thomas the five votes he needed to overturn Roe.
Now, of course, the question becomes … a majority for what else? What else are the five in the Dobbs majority going to do? The Alito opinion is an extended attack on the concept of “unenumerated” rights – that is, rights that are not explicitly mentioned in the Constitution. And here, Thomas has a point. If you extend the logic of Alito’s opinion in Dobbs, it makes total sense for the court to uphold limits on contraception, consensual sex and same-sex marriage.
As Alito writes for the majority, “the Constitution makes no reference to abortion.” (He makes this point at least three times.) In light of this silence about abortion, Alito asserts, the Court has no right to recognize a right to one. Indeed, in one of the opinion’s many disparaging references to Roe, Alito writes that Roe “held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
So there’s no right to abortion, and the implication follows, that there is no right to privacy either. Like Roe, the Court’s decisions in Griswold (the contraception case) and Lawrence (the consensual sex case) are explicitly based on the constitutional right to privacy – which Dobbs suggests does not exist. (Obergefell is not as directly based on privacy rights, but marriage is also not mentioned in the Constitution and thus, by Alito’s standard, undeserving of the Court’s protection.)
So by this logic, Thomas makes sense when he says that those cases should also be overturned. In Dobbs, Alito goes to some lengths to say that the decision applies only to abortion and not to any other subject. But Thomas, who is more candid, shows that the other precedents should fall, too.
These careful parsings are not just lawyers’ games. The law develops by these leaps of logic and inference. Thomas knows this, and so do the three dissenters in the case, Stephen Breyer, Sonia Sotomayor and Elena Kagan. This trio knows, as Thomas knows, that the Court has new targets in its sights. “No one should be confident that this majority is done with its work,” the dissenters write, “The right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception.”
Thomas has always done his work with admirable candor. He tells us where the Court is headed. With five conservative justices on the bench, we should take Angelou’s advice and take him at his word.
