Justice Thomas, in a concurring opinion to the Roe decision, says the court must revisit and overrule past landmark decisions that legalized the right to obtain contraception, the right to same-sex intimacy and the right to same-sex marriage.
overturning Roe v. Wade and wiping out constitutional protections for abortion rights, said that he would do away with the doctrine of “substantive due process” and explicitly called on the court to overrule the watershed civil rights rulings in Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges.
Supreme Court Justice Clarence Thomas listens as then-President Donald Trump speaks before he administers the Constitutional Oath to Amy Coney Barrett at the White House in Washington, D.C. on Oct. 26, 2020.“As I have previously explained, ‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” he wrote. He later called it a “legal fiction” that is “particularly dangerous.
“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,” Thomas wrote. Thomas then went even further, writing that the court, after overruling those particular decisions, should eliminate “substantive due process” altogether.
In their own opinions, Justices Samuel Alito and Brett Kavanaugh both referred to Loving, writing that it should not be revisited despite its reliance on substantive due process. Thomas' opinion also attracted the ire of prominent civil rights groups, as well as Jim Obergefell, the plaintiff in the 2015 decision that Thomas wants the court to overturn.
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