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The Court’s Last Shreds of Legitimacy

Justice Clarence Thomas has written two significant opinions concerning abortion.  Seventeen years ago in his lengthy dissent in Stenberg v. Carhart (2000), he denied that there is a constitutional right to abortion; he called Roe v. Wade (1973) “grievously wrong” and insisted that nothing in the Constitution “deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother.” After declaring that the “undue burden” standard announced in Planned Parenthood v. Casey (1992) was created “out of whole cloth” and devoid of any “historical or doctrinal pedigree,” he then described in horrific detail what occurs during a partial-birth abortion.

His second significant opinion was delivered last week; however; his dissent in Whole Woman’s Health v. Hellerstedt was not about whether there is a constitutional right to abortion but rather about how “the Court’s habit of applying different rules to different constitutional rights—especially the putative right to abortion”—is destroying the principle of the rule of law.

Thomas’s dissent is a lament to the failed “promise of a judiciary bound by the rule of law.” It concludes with these words: “The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgement that we have passed the point where law, properly speaking, has any further application.’ Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.”

Just as Thomas concludes his opinion by quoting the late Justice Antonin Scalia, so he begins it. Justice Breyer’s majority opinion, he writes, “exemplifies the Court’s troubling tendency ‘to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Stenberg v. Carhart (2000) (Scalia, J., dissenting).” In fact, Thomas quotes Scalia seven times in his dissent, and there is a reason.  In United States v. Virginia (1996), Scalia attacked the Court’s use of intermediate scrutiny, declaring that it applies it “when it seems like a good idea to load the dice.” Thomas’s entire dissent builds on Scalia’s critique and the devastating consequences for the rule of law that flow from it. “[T]he label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it ‘rational basis,’ intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.”

Thomas pointed out that ‘[t]hough the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960s did the Court begin in earnest to speak of ‘strict scrutiny’ versus reviewing legislation for mere rationality, and to develop the contours of these tests.”  Over time, “the tiers of scrutiny proliferated into ever more gradations,” with Craig v. Boren (1976) adding intermediate scrutiny for sex-based classifications and with Casey adding the undue-burden test, “ yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.” Yet, the use of these “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means (United States v. Virginia, Scalia, J., dissenting)” is, for Thomas, simply “illegitimate.” “The Constitution does not prescribe tiers of scrutiny. The three basic tiers—‘rational basis,’ intermediate, and strict scrutiny—‘are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’”

But, according to Thomas, the problem goes well “beyond that,” as “our recent cases illustrate . . . how easily the Court tinkers with levels of scrutiny to achieve its desired result.” He pointed out that “[t]his Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions [Fisher v. University of Tex. at Austin] than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test.” And, looking at the recent terms of the Court, he observed that “it is now easier for the government to restrict judicial candidates’ campaign speech [Williams-Yulee v. Florida Bar (2015)] than for the Government to define marriage [United States v. Windsor (2013)]—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review.”

Thomas argued that these decisions “reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights” such as the core free speech right to make political contributions, while selectively applying rational-basis review—under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law—with formidable toughness” when it comes to same-sex marriage. As Thomas remarked:  “These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its ‘doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.’ The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.”

All the evidence Thomas adduces led him to fear for the future of the rule of law. “The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. . . . Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

Reader Discussion

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on July 06, 2016 at 19:46:14 pm

Something serious and something silly:

"These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its ‘doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied."

does this imply that Justice Thomas accepts the *notion* of differing tiers of scrutiny and that his objection is to faulty application?

or

"But our Constitution renounces the notion that some constitutional rights are more equal than others"

Would he agree that there is one level and only one level of "scrutiny" that all Legislative AND Executive actions are to be judged by?

clearly some level of review (scrutiny) must be applied. Recently in these pages, some argued that "strict scrutiny" in all cases would tend to invalidate too much - even traffic laws according to the argument advanced by one writer.
Yet, strict is not to be confused with irrational if the standard against which it is determined is the Constitution. Strictly speaking: Is this a government power duly delegated by the people? without the need of a "Roberts-ian" feat of legalistic legerdemain, a contrivance whose purpose is neither an exposition nor explication of The Law but rather an avoidance of The Law for a specific purpose, (political or institutional) that the jurists prefers.

Now for the silly:

Justice Thomas misses the point(s) here:

"Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to POLICY DRIVEN value judgments until the last shreds of its legitimacy disappear.”

I would contend that these are *emoji* driven judgements having less to do with rational policy than with a need to express one's emotional support for X,Y, or Z AND that THE point may very well be to vitiate the last shreds of legitimacy. Just one more prong in the assault on any and all things crafted by "old, dead, white men."

Lastly:

In any event, one ought not to worry about it. Does any one doubt that Madame Dafarge, Oops, I mean Madame Hillary has knitted in the name of a Justice comparable to Justice Thomas on her crocheted list of SCOTUS nominees?

Brace yourselves; we may be in for a contemporary equivalent of Nixon's "modified, limited" (scrutiny! as the Wise Black Robes install their version of a *just* society.

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Image of gabe
gabe
on July 10, 2016 at 11:13:16 am

[…] of force to Justice Thomas’ critique, which is summarized by Ralph Rossum in an excellent article at the Library of Law and Liberty. But Justice Thomas is missing something essential. Yes, the rule […]

read full comment
Image of Justice Thomas’ Abortion Dissent and the Decline of the Rule of Law: What He’s Missing, and Why It Matters – LOOK MY PAGE
Justice Thomas’ Abortion Dissent and the Decline of the Rule of Law: What He’s Missing, and Why It Matters – LOOK MY PAGE
on July 10, 2016 at 11:19:12 am

[…] of force to Justice Thomas’ critique, which is summarized by Ralph Rossum in an excellent article at the Library of Law and Liberty. But Justice Thomas is missing something essential. Yes, the rule […]

read full comment
Image of Justice Thomas' Abortion Dissent and the Decline of the Rule of Law: What He's Missing, and Why It Matters | C'ville News Online
Justice Thomas' Abortion Dissent and the Decline of the Rule of Law: What He's Missing, and Why It Matters | C'ville News Online
on July 10, 2016 at 11:38:31 am

[…] of force to Justice Thomas’ critique, which is summarized by Ralph Rossum in an excellent article at the Library of Law and Liberty. But Justice Thomas is missing something essential. Yes, the rule […]

read full comment
Image of Justice Thomas' Abortion Dissent and the Decline of the Rule of Law: What He's Missing, and Why It Matters – Silver-Legacy
Justice Thomas' Abortion Dissent and the Decline of the Rule of Law: What He's Missing, and Why It Matters – Silver-Legacy
on July 10, 2016 at 18:01:18 pm

displace longstanding national traditions

THAT is the crux of the issue with this cretin who wants to return women to being chattel where they are forced to be incubators against their will.

America's "longstanding national traditions" were nothing but evil by any yardstick used.

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Image of Kuni
Kuni
on July 10, 2016 at 18:56:48 pm

Cloudy thinking from a judge without legitimacy (playing the race card secured his nomination and then borrowing every legal thought from Scalia). If Thomas really believes these "principles" he would resign (his education and advancement tied to affirmative action though he denies it) and immediately divorce his wife (can't support interracial marriage or marriage equality if one argues the state should determine who may marry). I had so wish he would resign. He brings nothing to court and nothing to American government.

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Image of Roman Ruins
Roman Ruins
on July 11, 2016 at 12:21:00 pm

[…] of force to Justice Thomas’ critique, which is summarized by Ralph Rossum in an excellent article at the Library of Law and Liberty. But Justice Thomas is missing something essential. Yes, the rule […]

read full comment
Image of Justice Thomas’ Abortion Dissent and the Decline of the Rule of Law: What He’s Missing, and Why It Matters |
Justice Thomas’ Abortion Dissent and the Decline of the Rule of Law: What He’s Missing, and Why It Matters |

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.