Supreme Court justice Clarence Thomas, who this weekend will mark 30 years on the Court, has little patience for precedent veneration. No idol of lawyerly adoration is safe in his chambers. He once called upon his colleagues to reconsider the holding of Calder v. Bull, a case that the Supreme Court decided in 1798. As he often takes care to explain in his lucid opinions, the Court’s job is to be faithful to the Constitution and to the law, not to its own decisions.
Lawyers who are invested in particular precedents, or in judicial supremacy generally, sometimes clutch their pearls when Thomas questions the Court’s prior decisions. Never are pearls more in danger of being snatched from stiffened necks than when Thomas mentions one precedent in particular, Roe v. Wade. His willingness to criticize the Court’s abortion precedents is often the subtext when discussion turns to the senior justice’s jurisprudence. The Court is poised to discuss those precedents this term as it deliberates in the case Dobbs v. Jackson Women’s Health Organization. Justice Thomas has done more than any other justice to make it plausible that the Court could conduct a critical examination of Roe in the Dobbs case.
Even lawyers who favor originalist methods of interpreting constitutions and laws have criticized Thomas for his thin theory of stare decisis, the legal doctrine that like cases should be decided alike. Many (though not all) of his critics take long-standing precedents to be “settled law,” a phrase one often hears used to describe badly reasoned decisions that the Court refuses to reconsider. But to speak of a judicial decision as law is to distort the public’s understanding of law and judicial power.
That distortion can be dangerous. When a court produces a string of unlawful decisions, the mistake of confusing precedents with law can be used for ideological ends to undermine the rule of law. Legal elites have blindly accepted the authority of wrong decisions throughout the Supreme Court’s history. When the Court ruled in 1857 that black Americans cannot be citizens, and in 1927 that “feeble minded” Americans can be deprived of their bodily liberty without due process of law, and in 1944 that Japanese Americans can be denied equal protection of the law, plenty of American lawyers were content to mouth, Thus saith the Court, ignoring dissenting opinions and contemporary critics who demonstrated at the time that those decisions were contrary to the law.
….In 2019, Thomas wrote a concurring opinion in the case Gamble v. United States in order to explain how “the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty.” When the Court “elevates demonstrably erroneous decisions — meaning decisions outside the realm of permissible interpretation — over the text of the Constitution and other duly enacted federal law,” it yields to the temptation “to confuse our own preferences with the requirements of the law.” To adhere to a “demonstrably erroneous precedent” is to exercise a power that the Court does not have. “A demonstrably incorrect judicial decision . . . is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power….”
The above comes from an Oct. 22 article in National Review.
Justice Thomas understands the court decisions that link legalized contraception, abortion, sodomy and same sex “marriage” in a way that all Catholics should but sadly don’t. The Church’s moral laws are supported by the American Constitution, not opposed, though errant justices have mangled truth and wrapped it in the flag, Justice Thomas is an antidote to their wrongs, God bless him.
Gob bless Justice Thomas.
Amen to that.
The Supreme Court has reversed its previous Constitutional rulings 145 times, including reversing the infamous and racist Dred Scott v. Sandford and Plessy v. Ferguson rulings. When rulings are not Constitutional, they should be reversed (or overturned), that’s part of the Supreme Court’s duty. When I hear people claim Roe is “the law of the land,” do they want a return to slavery, which once was “the law of the land?” The Dred Scott and Roe decisions have many similarities. Now, it’s past time for the latter to be reversed as well. Racism and abortion are two of our nation’s most long-lasting and destructive crimes and sins. Let us pray and work for the protection of and respect for all human persons. Pray for the Justices, that they may truly be instruments of justice.
“Your justice is everlasting and Your law is true.” (Psalm 119:142)
This all boils down to a simple perception: does life begin at conception. If one has that view, then Roe v Wade is contradictory to that view. However, the US citizenry is not composed of a plethora of Catholics, and even amongst its congregants, there are some who profess openly against abortion, but will, if it’s their daughter, allow it and deal with the consequences later. The Dredd Scott decision has similarities to Roe, but is not congruent: Dredd Scott was a physical man, able to breathe, run, eat, etc. A fetus cannot. If the US were a theocracy (which it is not – it is a Federal Republic based on democratic processes), then indeed, the Constitution would be easy to adapt to the Catholic view. Again, the US is not a theocracy, and must, by virtue of the inherent liberties given to all living citizen, recognize that religion is not the litmus test for constitutional breaking of a precedent. (If one must use Dredd Scott, bear in mind that many of the time believed slavery and righteous and religiously sanctioned, if not even mandated!). I found the title of the article perplexing by its use of slave when describing Judge Thomas a bit unnerving – was it meant to give some sense of righteous cause? Again, in the post for the photo, the author describes the other judges as “grabbing their pearls” – a reference to just the women on the bench or a direct derogatory slap to RBG? Demeaning at least, if not indicative of a patriarchal view of women by the church. Granted, there is a chance that RVW could be overturned, but whether it is or isn’t, the struggle for both the pro-life and pro-choice sides will continue long after Thomas is retired.
Michael, life does begin at conception, whether that tiny human person has Catholic parents or not. That’s biology, not Catholicism. At one time, some made a “scientific” argument that Blacks were subhuman. Of course, they were wrong, from both biological and Christian perspectives. Things are not true because the Catholic Church teaches them. The Catholic Church teaches things because they are true. If Dred Scott were wheelchair bound and unable to run, to use your example, would he not be a human person deserving of rights? Or, what about a newborn or toddler, who is obviously still dependent upon his or her parents for life? Do they have no right to life? Fetus describes the stage of life of a human person, as do adolescent and elderly. It seems “follow the science” is applied very selectively in our time. There really are not an unlimited number of genders and human persons are human persons from their conception. The fetus or toddler or child, given time and nourishment will, barring an untimely death, develop into a fully grown human person, like Dred Scott, and nothing else. And, that’s a biological fact, not a theological statement.
Thank you Deacon, for a most appropriate reply to Michael Dremel.
Thx Deacon, you were far more eloquent and and gracious than I would have been. You are so correct. It is not about “perception” it is about truth.
Honorable Deacon – you state that “life begins at conception, whether that tiny human person is from Catholic parents or not”. I agree that at conception the cells that begin to proliferate from zygote to fetus and eventually (not that’s a timeline reference) into a viable human being. However, we are simply going to have to agree to disagree politely that a fetus is not a “human”, in that it cannot function outside of the womb. It’s nice to believe that life begins at conception so that a patriarchal viewpoint be upheld and to support your own view of the world and how it should function. The bottom line on the pro-choice issue is the question of the human woman, which an anti-choice stance prohibits from aborting if she, in consult with her doctor and perhaps her family, decides to do so. It’s easy, as a man, to make this decision for the woman, as we are not the ones who must carry the child, not endure the trauma of childbirth, nor the grieving if one relinquishes a child for adoption.
Michael, I think we’re both men. That’s irrelevant to the biological facts. I’m not anti-woman and I’m presuming you’re not either. Are you okay with a girl or woman “terminating” her newborn, if she decides to do so? I currently have two newborn grandchildren. I can assure you they’re fully human, unique persons who, according to you, had no rights two weeks ago. The only change in two weeks is a little growth and their moving out of their mothers’ wombs. This is a matter of biology and human rights. Let’s love and support both babies and their mothers in difficult situations. (Do you think a girl or woman grieves more over placing her child with a loving family than over realizing that she “chose” death for her baby? Talk with the priests and others who help post-abortive women find forgiveness and healing.)
On a related note, the Dobbs case is about Mississippi’s 2018 law prohibiting most abortions after 15 weeks. Forty-seven of 50 European nations have laws limiting abortion to 15 weeks or earlier. Our nation currently joins only seven other nations, including North Korea and Communist China, in allowing virtually unrestricted abortions up until birth. While we should strive to protect all babies, from conception onward, we can begin by protecting many and stop being one of the most barbaric nations on the planet. We are better than this and women and babies deserve better.
A Catholic cannot agree to disagree that a fetus is not a human. That would be co-operating with mortal sin. If you say that a fetus is not human, we must strongly condemn that.
Abortion is the murder of a human child. Whatever stage of development in the womb, the baby is human.
Viability outside the womb is not what makes someone human.
Childbirth is not a trauma. Only in America is pregnancy treated as a disease.
I am not male. I have no problem telling another woman not to have an abortion, no matter the circumstances. (When the life of the mother is at stake, you need to do everything possible to save both people.) I have no problem if a man tells a woman not to have an abortion, either. He can tell her not to run red lights, too.. Male persons- don’t let people tell you that your council is not welcome unless you have a uterus. You are the child of a woman. You spent 9 months in a uterus. You know enough.
If the pregnancy resulted from a rape or incest, I have no problem telling a woman to cry, scream, beat your pillow, press all charges, get counseling, talk to a priest or preacher, get support from another mother who went through this but don’t kill the baby. It is not the baby’s fault that he or she was conceited that way. You are a strong woman. You can do this.
The best way that men can help prevent abortions is to stop impregnating women who don’t want babies.
And, girls and women who don’t want babies should stop having sex.
Babies are a natural consequence of sexual intercourse.
And, why doesn’t a father have any rights to choose life for his daughter or son, yet, based on the girl’s or woman’s choice, have to pay child support for at least 18 years, which, of course, he should, yet, must stand by helplessly if his girlfriend chooses to have their child killed.