Clarence Thomas, Associate Justice of the United States Supreme Court, has recently expressed his wish to revisit key substantive due process precedents. This includes the landmark Obergefell decision, which legalized same-sex marriage nationwide in 2015. Speaking at the Catholic University of America’s Columbus School of Law in Washington, D.C., on September 28, Thomas revealed his opposition to legal precedents. He claimed that he does not consider himself bound by them if he believes they are without good rationale.
During his remarks, Thomas made the case for having legal precedents rooted in something deeper than lofty ideals. He stated, “I think we should demand that, no matter what the case is, that it has more than just a simple theoretical basis.” His remarks come just days before the Supreme Court’s new term officially begins on October 6. This term, the court may provide an opportunity to weigh in directly on a petition submitted to overturn Obergefell.
Thomas’s call for reconsideration isn’t just limited to same-sex marriage – he wants other rights, like access to contraception and same-sex intimacy reassessed. He emphasized that settled legal precedent is not infallible, likening it to “something somebody dreamt up and others went along with.” He advocated for a more critical eye toward past actions. He expressed his fears that some of them may run counter to the country’s legal customs.
Beyond his beliefs about precedent, Thomas made headlines recently because of his repeated failures to disclose financial gifts. Democrats called for a judicial policymaking body to refer him to the Justice Department. This move came on the heels of his failure to disclose expensive gifts and travel paid by a secretive, wealthy conservative benefactor. In early January, the U.S. Judicial Conference shot this request down.
It is worth recalling that Thomas’s past dissent in the Obergefell case stands as testament to his decades-long opposition to same-sex marriage rights. As a member of the Supreme Court’s conservative supermajority, his views are especially dangerous and influential. His appointment during Donald Trump’s presidency only furthered his already massive impact. His comments may well shape future decisions on cases involving marriage equality and other fundamental rights.
“And you’re going to follow that? I think we owe our fellow citizens more than that.” – Clarence Thomas
Thomas’s views are emblematic of an ongoing, gradual ideological shift to the right within the Supreme Court. As he gets set for the new term, his pronouncements indicate he’s willing to upend a lot of conventional wisdom. He characterized settled precedent as potentially flawed, stating, “I don’t think that … any of these cases that have been decided are the gospel.”
As conversations about these important topics continue, Thomas argues that having a firm grasp on legal fundamentals will be key. He is of the opinion that judicial decisions should not just rubber stamp previous court decisions. His provocative remarks could signal a transformative period for the Supreme Court as it navigates contentious social issues in an increasingly polarized political climate.