Whoopi Goldberg to Clarence Thomas: You'd better hope conservatives don't try to make you a slave again

This segment could have been informative and useful for the audience if they’d had on a lawyer to talk them through how the Court approaches issues like substantive due process and equal protection.

But good television isn’t informative and useful. It’s emotional.

When you turn on “The View” or any primetime cable news show, you’re not looking to be educated. You’re looking to get angry, or at least to bathe in someone else’s anger.

I invite you to luxuriate, then, in the foamy spectacle of an Oscar winner warning a black Supreme Court justice that slavery might be coming back. Or that he might soon find his marriage to a white woman illegal again.

As embarrassing as this tirade is, it probably does reflect how a huge swath of the population (mis)understands how the Court and the Constitution work. There’s no 13th Amendment or Equal Protection Clause in this world. There are just conservative-controlled courts and liberal-controlled courts, and whoever’s in charge at a given moment determines whether every last liberal victory in the American civic firmament is in danger or not.

The Court is 6-3 among Republican appointees? Well, then, slavery must be somewhere on the radar. And interracial marriage? As good as gone.

Interracial marriage isn’t going anywhere. Even if SCOTUS took up the issue, nothing in Dobbs or any other recent ruling suggests they’re prepared to revisit the reasoning from Brown v. Board of Ed that laws aimed at keeping the races apart intrinsically apply a “badge of inferiority” to blacks by treating them as unfit to mix with whites. When those laws touch on a fundamental right like marriage, that’s an equal protection violation all day long.

Even if the Court lifted the constitutional protection for interracial marriage, there’s not a state legislature in the country that would want to be on the wrong side of an issue that polls like this:

Any state that even sniffed around the idea would draw horrified admonitions from the likes of Mitch McConnell, fearing that the backlash would endanger Republicans nationally.

It would take a lot of crazies in government to put anti-miscegenation laws back on the table. Why, I’d say we’re at least … four or five election cycles away.

The Court’s cases protecting contraception and gay marriage are worth worrying about, though, even if Clarence Thomas is the only justice willing to say forthrightly that they should be revisited. I’m skeptical that there are five votes on the Court to undo either of those precedents, especially after Brett Kavanaugh’s concurrence in Dobbs warning lower courts not to apply the Court’s logic about substantive due process on abortion to other aspects of law, like gay rights. But as I wrote on Friday and as Will Saletan writes today, it’s incoherent for Kav, Alito, and the Court to try to “quarantine” the logic of the Dobbs ruling from the rest of substantive due process. Alito claimed in his majority opinion that abortion is different because it’s a matter of life and death, but … why does that make it different as a constitutional matter?

If there’s no right to abortion because (a) it’s not mentioned in the Constitution and (b) there was no legal tradition of honoring that right at the time of the Founding, why shouldn’t the same logic apply to the right to buy condoms or to commit sodomy? What does “life and death” have to do with anything? Ironically, writes Saletan, in his zeal to overturn a decision that wasn’t based on any constitutional text, Alito himself invented an important new constitutional distinction out of thin air:

The constitutional groundlessness of the state’s asserted interest in “potential life” doesn’t mean that this interest isn’t important or that states can’t pass laws to protect the unborn. It just means that the Supreme Court can’t invoke this interest as a reason to insulate Griswold, Lawrence, or Obergefell from the logic of Dobbs. If the justices sincerely intend to purge past rulings that asserted rights not found in the Constitution, they can’t limit the purge based on a principle that’s also not found in the Constitution. They certainly can’t limit the purge based on a principle invented in Roe, the very case they’re purging…

If Alito, Thomas, and their colleagues want to go back to a world where the Supreme Court guarantees only those rights specified in the Constitution—or even if they just want to roll back the doctrine of substantive due process, as Thomas proposes—that’s a defensible, intellectually consistent position. They’re free to argue that any right not named in the Constitution is fair game for legislation. What’s not defensible is pretending that this rollback applies only to abortion—and basing that pretense on a distinction invented by Roe itself.

The only way the right to contraception will be overturned by the Court is if Thomas’s desire to get rid of substantive due process altogether gains traction, and I can’t imagine Kavanaugh and Roberts being eager to see that. Contraception also happens to be another issue like interracial marriage on which Americans are now essentially unanimous, with just four percent calling its use “morally wrong” in a 2016 Pew poll. If the Court decides next year that it’s now okay to ban condoms and the pill, which state legislatures would dare to take them up on the offer?

Does this sound like a man who’s eager to talk about banning contraception?

I’ll give Whoopi and the left this much, though: I do think it’s fair to worry about the constitutional status of gay marriage, at least a little. If the Court ends up devoting any more energy to paring down substantive due process in the years ahead, gay rights will probably be the target. Anthony Kennedy’s precedents striking down anti-sodomy laws and gay-marriage bans are based on constitutional interpretations that are just as shaky as the reasoning behind Roe, boiling down to unwritten rights of intimacy and bodily autonomy. Gay rights also aren’t as popular as interracial marriage and contraception are. They enjoy very solid majority support nationally, but if the states were empowered tomorrow to regulate gay relationships, a few ambitious red-state governors would give it a shot on pure “own the libs” grounds. Even so, I think the odds of the Court undoing Kennedy’s decisions near-term are less than 50 percent, as my read on Kavanaugh is that he’s not gung ho to embroil SCOTUS in another major culture-war fight so soon after Dobbs. But I also don’t fault Rachel Maddow for thinking gays might want to start considering the tilt of state governments when deciding where to reside.

Jazz Shaw Aug 10, 2022 8:01 AM ET