Balkinization: More Policy from Justice Thomas

More Policy from Justice Thomas

Mark Graber

Legal scholars think Justice Clarence Thomas’s opinions and votes fall into three categories.

   1. When historians support the conservative position, Thomas cites that history (i.e. abortion).
   2. When historians disagree, Thomas cites only those historians who support the conservative position, even when those historians have fewer credentials and publish in less prestigious outlets than those historians who support more liberal positions (i.e., regulatory takings)
   3. When historians support the liberal position, Thomas ignores history (i.e., affirmative action, campaign finance.

Thomas’s opinion in Box v. Planned Parenthood falls into the third category. The issue was whether Indiana could ban abortions performed because the woman did not want to bear a child of a specific sex, a child of a specific race or a child that had a specific disability. The justices punted. Thomas treated Americans to a sermon on the evils of eugenics.

The problem with the sermon is, of course, eugenics was not considered evil until recently. Thomas condemns the Supreme Court decision in Buck v. Bell (1927), but no historian has ever claimed that the persons responsible for the Fourteenth Amendment sought to ban the sterilization of women thought unfit to produce healthy children. Indeed, one suspects that during the mid-nineteenth century most Americans would think that preventing the birth of a disabled child (or a mixed-race child) was a particularly good reason for terminating a pregnancy, one that might justify a de facto exception from the abortion bans being enacted at the time.

The great advantage of living constitutionalism is that judges actually vote for the reasons they say. Justice Ruth Bader Ginsburg supports abortion rights because she believes abortion rights are necessary for women to achieve political, economic and social equality in the United States and because she believes the equal protection clause prohibits states from passing laws that prevent any group from achieving political, economic and social equality. Reasonable persons may disagree with both premises, but at least that debate is over why we should or should not support abortion. Thomas’s originalism, by comparison, is a fraud, to be tossed aside whenever inconvenient, as in Box v. Planned Parenthood. He is welcomed to deliver sermons against eugenics, but should have the decency to acknowledge that the sermon is one of constitutional morality and not of constitutional history or constitutional law.

Posted 7:42 AM by Mark Graber [link]