What Clarence Thomas's Concurrence in Dobbs Reveals About His Judicial Philosophy
Nothing. But it does point to his long history of family values extremism
I am trying my best not to fulminate about last week’s SCOTUS decisions if only to hang on to what dignity the Court’s majority will let me retain at this moment in history. However, while going through some old research, I found interesting and relevant documents that help us think about Associate Justice Clarence Thomas’s concurrence in Dobbs. They are from a folder marked “Clarence Thomas, Commission on the Family” in Box 1 of the Gary Bauer files at the Ronald Reagan Presidential Library.
Do you have a friend who would be interested in a deep historical dive on today’s issues? If so, please:
On June 26, 1986, Deborah Gore Dean sat down to write a response to a draft memo from Clarence Thomas, chair of the Equal Employment Opportunity Commission (EEOC). The draft had been circulated in Ronald Reagan’s cabinet by conservative activist Gary Bauer, an Undersecretary of Education and Kentucky-born, formerly working-class, Southern Baptist who worked tirelessly in the administration against abortion and gay rights.
Dean assuredThomas that she would “commit staff resources” to promoting Thomas’s central idea: that the only route to resolving poverty in the United States was to “remov[e] disincentives to sound family structure” among the poor; give state and local governments “flexibility” to establish their own anti-poverty guidelines, and expand “the role of the private sector” in anti-poverty programs.
As the executive assistant to Samuel R. Pierce, Ronald Reagan’s Secretary of Housing and Urban Development (HUD), Dean was in a position to implement such policies. Pierce was the president’s only African-American cabinet member, a man who, according to aides who later testified in a multi-year corruption investigation, “never developed an interest in housing policy and delegated most important decisions to his staff. In the afternoon, they said, Pierce could often be found watching television in his office.” Not surprisingly, under Pierce, public housing starts came to a crashing halt. Yet, except for a moment when Reagan publicly mistook him for a mayor invited to the same event, few Americans may have been aware that he even existed.
So why did someone whose friends acknowledged his extensive accomplishments and who was uninterested in the work remain in Reagan’s cabinet for two full terms? From Reagan’s point of view, a HUD that did nothing paralyzed a part of government that needed paralyzing. From Pierce’s perspective, as friends told the New York Times after his death, “it was widely known” that he harbored the “hope that President Reagan would nominate him,” or at least put him on track, for the Supreme Court.
As we know, the memo writer, Clarence Thomas, got the call instead. Elevated to the D.C. Circuit Court in 1990 by George H.W. Bush, Thomas was nominated to SCOTUS in 1991 when Associate Justice Thurgood Marshall retired. Last week, it was from that seat that Thomas issued a powerful, seven-page concurrence in Dobbs v. Jackson Women’s Health. Although he agreed with Samuel Alito that abortion was morally unique, but that the principles used in deciding Dobbs could go much farther..
Thomas argued that neither of the Constitutional principles that had upheld the right to abortion in Roe and Casey, the rights to privacy and substantive due process, were unique to abortion. Hence, Thomas urged, “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,’” he continued, “we have a duty to `correct the error’ established in those precedents[.]” Chillingly, the correction could quickly gut other constitutional principles that have been fundamental to establishing unenumerated rights. “For example,” Thomas writes,
we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights.
If Thomas has his way, constitutional rights to private sex acts, gay marriage, and contraception are all threatened now. It is likely that eager members of the Federalist Society will generate cases designed to make their way to SCOTUS to test that. Of course, as the Thomas concurrence notes and the decision written by Associate Justice Samuel Alito does not, this is the logic inherent to Dobbs. As Amy Howe at SCOTUS Blog reminds us, it’s hard to “put a limiting principle on a ruling rolling back these legally interconnected rights.”
Some shrug and say that Thomas’s position is not hostile: he is merely being “honest” about his views, as well as the SCOTUS majority’s project: “exercising power” because they have it and “reshaping the law according to their own political beliefs and calculations about potential political backlash.”
Does Thomas deserve praise for being frank? Perhaps, but it’s a low bar, since the comparison is five other justices bent on gaslighting the public about their own activist views. First, there is Chief Justice John Roberts’ gradual brick-building, over multiple religious freedom cases articulated as limited rulings, to gutting the establishment clause of the First Amendment in Carson v. Makin. Then, there is Alito’s disingenuous statement that striking down the right to abortion has no bearing on other cases conveying the right to privacy and due process. Furthermore, there are the lies that Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett told in their hearings about how they would approach the right to abortion.
I could go on.
But hold back on your praise for Thomas because he is lying too. His position on all these cases is not about the law. It is entirely ideological and it is undoubtedly why he was elevated to the federal bench in the first place.
So et’’s return to that 1986 draft memo about the causes and cures for poverty, which proposes to rebuild low-income communities through mandatory labor, loans for job-training programs, and policies that encouraged the formation of traditional two-parent, heterosexual families.
Thomas begins by citing an 1864 letter from Abraham Lincoln to a labor leader that “the strongest bond of human sympathy, outside of the family relation, should be one uniting all working people, of all nations, and tongues, and kindreds.” He then interprets this statement as the underpinning for 20th century social policy: “without succumbing to Marxist gibberish about class struggle, Lincoln brought out the common humanity that work induces in human beings. When men and women work,” he continued,
they become part of a great bond of interest and sympathy. Only the family with its natural, greater emotional and material ties, is stronger. Both work and the family can advance rights while they enforce responsibilities. And for the disintegrated or never formed family, work may prove to be the solution or at least part of it.
Furthermore, federal policy on poverty should not worry about income inequality, because it was the natural result of different forms of work. Being poor was “not a problem,” nor should policymakers view “material measures of well-being…as absolute indicators of human happiness.” Finally, he argued that one aspect of political freedom in the United States was the freedom to be rich or poor.
As Thomas continued, arguments by scholars and media figures about the “hellish, pathological condition of unwed teenage mothers,” primarily black, “attempting to raise children amid high unemployment, violence, and drugs,” would not improve from federal programs designed and implemented by liberals. Why? Because such programs eroded the character of the poor even further, and demanded no reforms. Because of this, Thomas argued, such people lived in disorganized households, and “appear to lack the emotional bonds and material resources which characterize the family as an extension of human nature” (emphasis mine.)
Thus, the government could not improve the poor. The poor could only improve themselves by being forced to re-commit to the traditional family. The Reagan administration should, therefore, “consider not only government programs and their original intentions, but also changes in social mores and suppositions concerning the role of government in daily life.” Thomas asked:
how is it that a program originally intended to aid the widows of veterans (AFDC) had become increasingly directed at mothers who have never been married? What has transformed laws with beneficent motives into laws with bizarre and even immoral consequences? Do we need to scrap the law, modify it, ignore the law but transform the morals, provide for additional legislation? Do we infact need to confront more than just a set of laws, but rather an entire mentality or mind-set which must be re-examined?
Thus, getting the government out of the business of supporting, much less tolerating, non-traditional forms of domesticity would support the Reagan administration’s commitment “to the promotion of political freedom, with all its incumbent responsibilities.”
And what was Thomas’s primary example of such responsibilities? The lack of repercussions for sexual intercourse outside marriage and the government’s encouragement of consequence-free sexuality through federally funded sex education. “We must never even hint that abortion or any policy encouraging abortions should be part of our policy,” he wrote. Instead, Thomas recommended massive defunding of anti-poverty programs: housing, nutrition, and medical care for women and children. He also suggested the elimination of sex education, a program that had “undermined the family in general.”
In fact, many of these funds were simply allocated or diverted in the Reagan administration without dissolving the programs. Deborah Gore Dean, for example, appears to have implemented Thomas’s policy proposals by diverting taxpayer dollars to family members, friends, and Republican cronies. In hte early 1990s, she paid a fine and was sentenced to a year of home confinement for her part in funneling HUD money to “well-connected Republican consultants and former HUD officials.”
But back to Thomas: the question, following the Dobbs concurrence, is not whether he is being honest, but what he is being honest about. It is this: a quarter century of ideological commitment to reinstating traditional families, and an extremist view of American freedom, in which all citizens are “free” to fail if they reject conservative family values.
Eliminating the right to reproductive or unreproductive sex outside of marriage, and family formation for those who are not thoroughly heterosexual is part of the social experiment that Thomas proposed in 1986. In this context, forcing women to carry unwanted pregnancies to term was both a punishment and an opportunity to return them to the traditional family unit in the interests of survival.
Make no mistake: Clarence Thomas is not a principled conservative legal theorist who has a zealot for a wife. He is a zealot too, and one who works from inside the house. That is what he is being honest about in his concurrence. And his citation of Griswold, Lawrence, and Obergefell is not incidental to that. On the contrary, they are a call to action to conservative legal activists everywhere that their time is now.
What I’m doing when you aren’t looking:
When Roe dropped into the dustbin of history on Friday, I was fortunate to be in the midst of Colm Toíbín’s 2004 historical novel about Henry James, The Master. As in one of James’s novels, there is a calm order to the life lived within these pages, a focus on the inner life, and a constant filter between James and the world.
Hulu’s Mormon No More gives you the inside skinny on Mormons who come out as gay or lesbian, with lots of juicy footage of homophobic Church Elders. The central characters, Lena Schwen and Sally “Sal” Osborne, fall in love when both are married to men, and they have seven children between them. So how do they navigate their relationship with each other, God, their families of origin, and their ex-husbands? You will have to tune in to find out!
At The Cut, Claire Lampen predicts that there will be a full-on health care crisis in states where abortion is, or is becoming, illegal, putting pressure on services and creating shortages in the rest of the nation. “It’s impossible to tell just how many people died because of botched abortions pre-Roe, though the WHO estimates that 4.7 to 13.2 percent of the world’s current maternal deaths result from unsafe abortions,” Lampen writes. “Domestically, multiple studies show that the more restrictions on abortion a state enacts, the higher its maternal- and infant mortality rates tend to be. (Mississippi, incidentally, has the highest infant mortality rate in the country.) That’s not necessarily because people seek out unsafe avenues to end their pregnancies; more likely, it’s because their state governments balk at subsidizing reproductive health care in all its forms.” (June 24, 2022)
Tara Law at Time magazine asked four gynecologists about how they will function in a post-Roe world. New difficulties range from making pregnancy tests available as early as possible to miscarriage care to becoming a traffic director who can send abortion seekers to the nearest safe and legal provider. “If someone presents to me with a miscarriage, I’m not going to be interrogating people about how they got to this place. I’m just going to provide the care,” says one. (June 24, 2022)
At The New Republic, Michael Tomasky scalds Maine’s Republican Senator Susan Collins for believing Brett Kavanaugh’s lies that Roe v. Wade was “settled law.” You can read all her statements defending him but may wish to cut to the end where Tomasky puts Collins in the Hall of Shame. “I see that just three days ago, she put her Bangor house up for sale,” he writes. “I wish I had a spare $727,000 sitting around. I’d buy it and burn it to the ground. And I’d name the resulting ash heap the Susan Collins Memorial to Women’s Rights.” (June 24, 2022)
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