The Volokh Conspiracy
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On Justice Thomas, Dobbs, Precedent, and Substantive Due Process
In his Dobbs concurrence, the senior associate justice reiterates his outlying views on precedent and his belief that all substantive due process decisions were "demonstrably erroneous."
The concurring opinion by Justice Clarence Thomas in Dobbs v. Jackson Women's Health Organization is certainly turning heads. In that solo opinion, Justice Thomas calls for revisiting all of the Supreme Court's prior decisions holding that unenumerated rights are protected by substantive due process. It is a striking opinion, but it is also not anything new.
Justice Thomas wrote separately in Dobbs to reiterate two positions he has long held: 1) There are no substantive, unenumerated rights protected by the Due Process Clause of the Fourteenth Amendment; and 2) the Supreme Court should reconsider and overturn any prior constitutional decision that is "demonstrably erroneous." These are positions Justice Thomas has expressed before and, as before, these are positions that his colleagues on the Court have refused to embrace.
First, on the Due Process Clause, Justice Thomas has long argued (consistent with much academic commentary) that insofar as the Fourteenth Amendment incorporates enumerated rights against the states and protects unenumerated rights, this work is done by the Privileges or Immunities Clause, and not the Due Process Clause. From his Dobbs concurrence:
Considerable historical evidence indicates that "due process of law" merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment). Other sources, by contrast, suggest that "due process 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., concurring) (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 process is provided." Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).
As I have previously explained, "substantive due process" is an oxymoron that "lack[s] any basis in the Constitution." Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) ("[T]ext and history provide little support for modern substantive due process doctrine"). "The notion that a constitutional provision that guarantees only 'process' before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words." McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.
As the repeated citations to his own prior opinions indicate, this is not a new view, and Justice Thomas did not say anything about substantive due process in Dobbs that he had not said before. (He also reiterated that some unenumerated rights may be protected by the Fourteenth Amendment's Privileges or Immunities Clause, while also reiterating his view that the right to terminate a pregnancy would not be among any such rights.)
Second, on precedent, Justice Thomas reiterates his long-held view that the Supreme Court should overturn any "demonstrably erroneous" constitutional decision, and that overturning prior precedent does not require consideration of the other stare decisis factors identified by the Court's majority opinion (or in Justice Kavanaugh's concurrence). Here is what Thomas said in Dobbs:
Because any substantive due process decision is "demonstrably erroneous," Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to "correct the error" established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9).
For a fuller explication of his view of precedent, it is worth looking at Justice Thomas's concurring opinion in Gamble v. United States, where he made clear his disagreement with the Court's current approach to stare decisis.
In my view, the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law. It is always "tempting for judges to confuse our own preferences with the requirements of the law," Obergefell v. Hodges, 576 U. S. ___, ___ (2015) (ROBERTS, C. J., dissenting) (slip op., at 3), and the Court's stare decisis doctrine exacerbates that temptation by giving the veneer of respectability to our continued application of demonstrably incorrect precedents. By applying demonstrably erroneous precedent instead of the relevant law's text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises "force" and "will," two attributes the People did not give it. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (capitalization omitted).
Justice Thomas went on in Gamble to explain why he believes this approach in constitutional cases is compelled by the nature of the federal judicial power and the text of the Constitution. In short, he argued that a judge's duty in a constitutional case is different from the judge's duty in the common law context.
Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, precedent plays a different role in our exercise of the "judicial Power" than it did at common law. 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. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.
And he concludes:
Our judicial duty to interpret the law requires adherence to the original meaning of the text. For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous.
Of note, Justice Thomas wrote for himself in Gamble, just as he wrote for himself in Dobbs. Whatever sympathy some other justices may have for Justice Thomas's views of substantive due process, there is no indication that any of his colleagues share his view on stare decisis. Indeed, both Justice Alito's majority opinion, and the concurring opinion by Justice Kavanaugh, expressly embrace the multi-factor stare decisis that Justice Thomas has long rejected.
All the above helps explain why I do not believe Dobbs portends any threat to decisions such as Griswold, Lawrence, or Obergefell. Rather, I agree with my co-blogger Dale Carpenter's assessment as to why these other decisions recognizing fundamental rights protected by the Due Process Clause are unlikely to be reconsidered, let alone overturned. I do not believe there are four votes to accept certiorari in a case presenting such questions, let alone the five that would be necessary to overturn any of these cases.