The "Substantive Due Process" Double Standard: In his concurring opinion in the 2022 Dobbs v. Jackson Women's Health Organization ruling, Thomas argued that the Supreme Court should reconsider all of its "substantive due process precedents". This includes landmark rulings that protect privacy rights for contraception (Griswold v. Connecticut), same-sex relationships (Lawrence v. Texas), and marriage equality (Obergefell v. Hodges). Detractors view this as hypocritical because his rationale could threaten the legal precedent (Loving v. Virginia) that protects his own interracial marriage, which he notably omitted from his Dobbs opinion list. Georgetown University +3
I wonder if there was something going on around the time of the passing of the 14th amendment that would give an originalist a good faith reason to think it protects the validity of interracial marriages but not contraception, same sex marriage, or same sex relationships. I feel like maybe if you looked hard enough, you could find a pretty good argument that there was a basis for that position other than personal preference.
Critics frequently argue that Justice Clarence Thomas’s originalist jurisprudence contains hypocrisies, particularly in
affirmative action cases, where he allegedly discards original intent in favor of modern conservative policy preferences. [
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The primary examples of this criticism include:
- Affirmative Action: Thomas has authored opinions declaring the Constitution "colorblind" to invalidate diversity programs, such as in the 2023 Students for Fair Admissions ruling. Legal historians argue this ignores the original intent of the 14th Amendment framers, who crafted the amendment precisely to pass race-conscious laws to aid newly freed slaves. [1, 2, 3, 4]
I mean, there is certainly an argument that the equal protection clause only prevents discrimination against black people. That certainly was at the forefront of people's minds. But it is not a good faith argument to say that only personal preference could justify a conclusion that "on the basis of race" means, "on the basis of race" and not "on the basis of being black". It's a pretty logical inference to determine that the people writing it really recognized that discrimination against black people, like discriminating against anybody based on race, was wrong and that's why they wrote the law to literally prohibit discrimination on the basis of race. That's not exactly abandoning originalism or textualism.
- Congressional Power and Native Rights: In Haaland v. Brackeen (2023), Thomas argued that federal protections for Native American adoptees under the Indian Child Welfare Act (ICWA) were unconstitutional. Critics and fellow Justices contended this ignored historical frameworks of tribal sovereignty and federal power deeply rooted in the Constitution's original text. [1, 2]
Not familiar with that one. So what exactly was his argument and how did it abandon originalism or reflect a bad faith application of it?
- The Second Amendment: In New York State Rifle & Pistol Association v. Bruen (2022), Thomas's majority opinion required courts to determine if modern gun regulations are consistent with historical tradition. Critics point out that Thomas and the conservative majority ignored historical gun laws from the founding era that did not align with a sweeping right to carry arms in public. [1, 2]
That is a difference in opinion on how originalism should fall out. There are all sorts of arguments why the 2nd amendment doesn't mean what the text says. And there are all sorts of argumenst why the 2nd amendment does mean what the text says. That does not mean finding that it says what it says is ignoring originalism.
But those examples of state level restrictions are also from before the 14th amendment and the incorporation of the bill of rights against the states. I would agree that the whole incorporation doctrine is somewhat of a mess. But that is one that I don't think is on the supreme court.
- Stare Decisis vs. Stacking Precedent: Thomas often criticizes stare decisis (respecting precedent) by claiming courts must overrule cases that conflict with original text. However, critics argue he inconsistently applies this standard, aggressively targeting long-standing precedents he dislikes while leaving other problematic historical rulings untouched. [1, 2, 3, 4, 5]
Well, how can you argue with specifics like that?
