Conservatives Skeptical of Thomas' New Challenge

When the Roe v. Wade decision came down, Clarence Thomas made headlines with a controversial separate opinion. He suggested the court, as it did with abortion, should examine the legal underpinnings of issues including same-sex marriage and the use of contraception. Thomas, part of the powerful new conservative majority on the court, “is saying the quiet part out loud,” NYU law professor Melissa Murray tells the Washington Post. “He’s issuing invitations.” An analysis at the Texas Tribune has a similar take, concluding that Thomas is essentially inviting legal challenges in regard to rights the court has previously ruled are protected by the Constitution. So what are the chances the court might eventually rule against gay rights and birth control? For now, the consensus is that the odds are pretty slim, per the Wall Street Journal.

The story notes that Samuel Alito, author of the majority opinion that overturned Roe, made a point to throw cold water on the idea. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alito wrote. Fellow conservative Brett Kavanaugh also distanced himself from Thomas: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents,” he wrote. But the three liberal dissenters are worried. “Today’s opinion will fuel the fight to get contraception, and any other issues with a moral dimension, out of the Fourteenth Amendment and into state legislatures," wrote Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The Journal talks to legal scholars who generally are in sync with Alito and Kavanaugh. “I don’t think there are the votes for re-examination of those other precedents,” says Sarah Parshall Perry, a Heritage Foundation lawyer. “Abortion is inherently different. ... Roe has always stuck out as a particularly egregious decision.” As Aaron Blake points out in a Washington Post analysis, if Alito and Kavanaugh aren't on board, no such reversals will happen. Blake also points out what others have raised: That Thomas, whose wife, Ginni, is white, did not mention interracial marriage in his list of possible reversals. It's notable because Kavanaugh specifically mentioned the issue in his own opinion, citing the Loving v. Virginia case that established the right as an example of rulings that should remain unchallenged. (More Clarence Thomas stories.)