There was a second explosive charge hidden within the bombshell Supreme Court ruling that gutted abortion rights across America. “In future cases,” wrote Clarence Thomas, the 74-year old conservative justice, “we should reconsider all of this Court’s substantive due process precedents.”
With that single phrase, Thomas raised the fears of liberal America that the country’s highest court would move to overturn precedents that established constitutional rights along similar principles to Roe vs Wade.
Thomas listed three targets: Griswold vs Connecticut, which established a right to contraception in 1965; Lawrence vs Texas, which clarified the right to sexual intercourse with a person of the same sex in 2003; and Obergefell vs Hodges, the 2015 ruling that guaranteed access to same-sex marriage.
“We have a duty to ‘correct the error’ established in those precedents,” Thomas said.
Other members of the conservative majority that struck down Roe vs Wade stressed that the abortion case should not be applied more widely. But many Americans now worry that their decision heralds further steps by the court to roll back decades of social progress.
The majority opinion, penned by Samuel Alito, declared that abortion rights were not “deeply rooted” in American history.
“In holding that it is not deeply rooted in our history, today’s decision on that theory, then, calls into question other rights that we thought were settled, such as the right to use birth control, the right to same-sex marriage, the right to interracial marriage,” Kamala Harris, the vice-president, said.
“Think about it as the right for each person to make intimate decisions about heart and home”.
Thomas has been a totem of the rightwing of the Supreme Court since 1991 after he was nominated by George HW Bush and confirmed by the Senate in the face of sexual harassment allegations from former aide Anita Hill. For years, he fought lonely rightwing judicial battles alongside the late conservative justice Antonin Scalia.
Thomas was part of the majority in conservative victories such as Bush vs Gore, which decided the 2000 presidential election in the Republican’s favour, DC vs Heller, the 2008 affirmation of gun rights, and the Citizens United campaign finance case a few years later.
When the liberals on the court prevailed, as in Obergefell or when the court upheld Barack Obama’s healthcare law, Thomas dissented. This year he was the sole dissenting voice when the Supreme Court rejected Donald Trump’s efforts to deny Congress White House records from the January 6 attack.
When Trump added three philosophical allies to the bench during his term, Thomas ceased to be a radical on America’s highest court. The entire institution had shifted to his side.
“He’s feeling redeemed in a way by having an aggressive conservative majority that he is now part of,” said Katherine Franke, a professor at Columbia Law School.
“Conservative isn’t even the right word any more,” added Michael Klarman, professor of US legal history at Harvard Law School. “What Clarence Thomas wants to do is radical, not conservative.”
As Thomas’ clout has increased, he has faced growing criticism that he is overtly political and dedicated more to pursuing the priorities of the Republican party than to a conservative judicial philosophy.
The activities of Ginni Thomas, his wife, have recently brought those concerns to the fore.
A former Republican aide and activist, Ginni Thomas was a supporter of Trump, cheering on the former president’s rally on the National Mall on January 6 last year that preceded the attack on the US Capitol. She told Mark Meadows, Trump’s chief of staff, in text messages that “Biden and the left” were attempting “the greatest heist of our history”.
Ginni Thomas is now being asked for information from the congressional probe into the insurrection that day.
“Not only has she been engaging in highly ideological, highly partisan political activities, but . . . she was supportive of . . . a coup to overturn the democratically elected president of the United State,” said Barbara Perry, a scholar of the Supreme Court and the presidency at the University of Virginia.
“That is what is so damaging to her, to her husband and therefore to the institution on which he sits.”
Frank said that considering the controversy surrounding Ginni Thomas, “one might imagine that a Supreme Court Justice under that kind of scrutiny would tone it down a little bit and be a little less political”.
“But he didn’t,” he added. “The Thomas family is still operating in full-bore of politicising our democracy.”
Thomas has brushed off suggestions that he is too politically active, instead attacking “cancel culture” and decrying the loss of respect for institutions among younger Americans. After the highly unusual leak of a draft opinion in the case involving Roe vs Wade last month, he said: “We can’t be an institution that can be bullied into giving you just the outcomes you want”.
To conservative Republicans, that makes Thomas a hero.
“Not only is Justice Clarence Thomas fearless, he’s a joyful and happy warrior,” Ted Cruz, the Texas senator, wrote on Twitter this week. “To hell with the haters — Justice Thomas stands up for the Constitution!”
But now millions of Americans are closely watching whether the court will abolish more of what they had assumed to be their constitutional rights.
“What [Thomas] wrote is absolutely chilling,” said Karine Jean-Pierre, White House press secretary.
“If that were to happen, . . . that would, for sure, for sure, change this country for decades, I mean, change it by generations.”
