Fact Check: Clarence Thomas and ‘Substantive Due Process’

CLAIM: Justice Clarence Thomas says the Supreme Court will reverse other socially liberal decisions after overturning Roe.

VERDICT: MOSTLY FALSE. Thomas wants to end “substantive due process,” but agrees Dobbs only applies to abortion.

The long-awaited decision in Dobbs v. Jackson Women’s Health Organization was handed down by the Supreme Court on Friday, and it overturned Roe v. Wade (1973), which had provided a constitutional right to abortion. As Breitbart News has explained, the Dobbs decision is limited to abortion, and would not affect other socially liberal decisions on contraception, gay marriage, and so on — despite what Democratic Party leaders have been saying in an effort to raise the alarm on Dobbs.

But a concurring opinion issued by Justice Thomas has set the chattering classes on edge again, repeating past warnings.

In his opinion, Thomas states explicitly that he agrees with the majority opinion that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” However, he says that he wants to remove the “substantive due process” doctrine on which Roe had been based, and on which other decisions had also been based:

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy laws], and Obergefell [gay marriage]. Because any substantive due process decision is “demonstrably erroneous” … we have a duty to “correct the error” established in those precedents.

However, Thomas does not rule out the possibility that the rights established in those cases would still exist. He just says that they should be based on other provisions of the Constitution, and not on the “substantive due process” doctrine itself:

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.

Thus Thomas is not, as critics allege, trying to overturn the right to contraception or gay marriage (though that is theoretically possible). Rather, he wants to put those rights on different, and more solid, constitutional footing, because he believes that “substantive due process” is a doctrine that can easily be abused by the Supreme Court.

Going forward, he says: “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” For now, he agrees Dobbs only applies to abortion.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.