Chicago mayor 'Beetlejuice' Lightfoot (D-IL), incensed by Supreme Court Justice Clarence Thomas’ concurring opinion in the case which overturned Roe v. Wade, screamed to a crowd over the weekend, “F*** Clarence Thomas!”
In his concurrence, Thomas went farther than the other conservative justices, calling for the concept of substantive due process to be thrown out and reconsidering “all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Griswold v. Connecticut enshrined the “right to privacy,” Lawrence v. Texas ruled that people had the right to “seek autonomy” in their private relationships, and Obergefell v. Hodges enshrined the right to same-sex marriage.
“If you read Clarence Thomas’ concurrence … f*** Clarence Thomas,” Lightfoot, who is a lesbian, screamed. She raged, “If he thinks we are going to stand idly by while they take our rights … “
In Thomas’ concurrence, he first explained the rationale for the conservative justices overturning Roe using substantive due process: “The Court well explains why, under our substantive due process precedents, the purported right to abortion is not a form of ‘liberty’ protected by the Due Process Clause. Such a right is neither ‘deeply rooted in this Nation’s history and tradition nor ‘implicit in the concept of ordered liberty.’”
But then he segued to decimating the concept of substantive due process: “As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution.’”
He quoted himself from another case, McDonald v. Chicago: “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.”
He noted the other conservative justices’ reluctance to tackle substantive due process: “The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, (right of married persons to obtain contraceptives); Lawrence v. Texas, (right to engage in private, consensual sexual acts); and Obergefell v. Hodges (right to same-sex marriage), are not at issue.”
Then he went where the other justices apparently feared to go: “For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”
“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,” he continued. “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.”
… apart from being a demonstrably incorrect reading of the Due Process Clause, the “legal fiction” of substantive due process is “particularly dangerous.” … At least three dangers favor jettisoning the doctrine entirely. First, “substantive due process exalts judges at the expense of the People from whom they derive their authority.”
Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others. …
Third, substantive due process is often wielded to “disastrous ends.” … For instance, in Dred Scott v. Sandford, the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.
… in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” 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.
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Author: Hank Berrien
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