By William J. Olson, P.C.
June 29, 2016
This morning, The American Thinker published our article entitled “Whole Woman’s Health: Justice Thomas Exposes the Court’s Corrupt Abortion Jurisprudence.”
By a vote of 5 (Breyer, Kennedy, Ginsburg, Sotomayor, and Kagan) to 3 (Thomas, Alito, and Roberts), the Court struck down the Texas law on Monday.
We filed an amicus brief in that case on February 3, 2016 on behalf of Conservative Legal Defense and Education Fund, U.S. Justice Foundation, Institute on the Constitution, and Southwest Prophecy Ministries.
What makes this decision truly extraordinary, is not Justice Breyer’s majority opinion or Justice Ginsburg’s concurrence, but Justice Thomas’ dissent, which once and for all wiped away any notion that the current Court respected or followed the U.S. Constitution. We set out here the portion of our article that addressed this remarkable dissent.
The Thomas Dissent
Indeed, in what may go down as his best dissent ever, Justice Thomas began with Justice Scalia’s famous observation in his 2000 dissent in Stenberg v. Carhart about the fraudulent nature of Supreme Court abortion jurisprudence: “the Court’s troubling tendency to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Justice Thomas ripped the majority opinion from one end to the other, explaining why it is corrupt, mangling even the subjective “undue burden” test of Planned Parenthood v. Casey. Accusing the Court of further perpetuating a “habit of applying different rules to different constitutional rights – especially the putative right to abortion,” Justice Thomas concluded: “Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predictability nor the promise of a judiciary bound by the rule of law.” Concluding with a frontal assault on balancing tests, Justice Thomas warned: “As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat…. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result.”
This brilliant dissent should be required reading for every law school student, who is increasingly unexposed to reasoning from fixed principles and instead trained in the techniques of judicial balancing – as if the latter were all that law is about. Justice Thomas took his constitutional law lesson back to the beginnings of where the Court’s jurisprudence went astray – discussing, inter alia, the famous Footnote 4 of the Court’s 1938 decision in United States v. Carolene Products as an excuse to issue decisions that favored unenumerated rights, setting the Court at large.
Justice Thomas pulled no punches, observing:
The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not – and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate….”
In his concluding paragraph, Justice Thomas returned to Justice Scalia, observing that “[t]he majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat – an acknowledgment that we have passed the point where “law,” properly speaking, has any further application.'” Brilliant. Let us hope that this clear statement of judicial error will constitute a turning point, as the curtain is ripped back on the techniques of judicial fiat. Justice Scalia would have been pleased.
Copyright © 2016 William J. Olson, P.C. All rights reserved.