Quotes from Justice Thomas’ dissent in WHOLE WOMAN’S HEALTH v. HELLERSTEDT

Justice Clarence Thomas dissented today.

In his dissent to the SCOTUS majority opinion in WHOLE WOMAN’S HEALTH v. HELLERSTEDT Thomas wrote about the false principles they are using, and have been using.

Here are a few excerpts from his 16 page dissent:

Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. 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.

[…]

The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat.
Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage.Only in the 1960’s did the Court begin in earnest to speak of “strict scrutiny” versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1284–1285 (2007). In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech. Id., at 1275–1283. Roe v. Wade, 410 U. S. 113, then applied strict scrutiny to a purportedly “fundamental” substantive due process right for the first time. Id., at 162– 164; see Fallon, supra, at 1283; accord, Casey, supra, at 871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand “strict scrutiny”).

At about this point in the post you might need some.

Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., Craig, 429 U. S., at 197–198 (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U. S. 558, 580 (2003) (O’Connor, J., concurring in judgment) (“a more searching form of rational basis review” applies to unpopular group”); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per curiam) (applying “‘closest scrutiny’” to campaign-finance contribution limits). Casey’s undue-burden test added yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review.
The illegitimacy of using “made-up tests” to “displace longstanding national traditions as the primary determinant of what the Constitution means” has long been apparent. United States v. Virginia, 518 U. S. 515, 570 (1996) (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers— “rational basis,” intermediate, and strict scrutiny—“are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.” Id., at 567; see also Craig, supra, at 217–221 (Rehnquist,J., dissenting).
But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. …

[…]

Eighty years on, the Court has come full circle. 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. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.

* * *

Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.
[…]

Meanwhile, I received a book which I am looking forward to digging into… after Thursday. Russell Shaw’s new book, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America.

About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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15 Responses to Quotes from Justice Thomas’ dissent in WHOLE WOMAN’S HEALTH v. HELLERSTEDT

  1. Tony Phillips says:

    Comment from England: One admirable thing about America is that democracy permeates from the highest levels right down into the smallest communities. We don’t have democracy in the UK, except for the very rare referendum; we have a parliamentary autocracy, in which look-alike parties select non-resident MPs to ‘represent’ their constituencies. We don’t have local control in our communities: when Westminster tells us we must build houses on our local countryside, which they do, we’re stuck.

    But the one failure in the American system is a Supreme Court that has usurped powers never dreamed of in your consitution. And no one seems to have the will to reign them in. Isn’t it time you had an Article 5 convention to put things right?

  2. TheDude05 says:

    It’s a great book Father and really asks you to look hard at if one can truly be fully American and Catholic. A great companion piece to Rebuilding Catholic Culture by Ryan N. S. Topping.

  3. iamlucky13 says:

    “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.”

    THIS!!!

    It’s one thing for the general public to throw around cheap words like, “you’re violating our constitutional rights,” with no more sense of the actual meaning of those words (hint – they relate to matters actually covered in the Constitution) than the general public has of the word “literally.”

    It’s an inexcusable and very different matter for those who are supposed to be the most preeminent judges in the entire nation to do so.

  4. Giuseppe says:

    Neither of the other dissenters (Roberts and Alito) joined this dissent. Justice Alito wrote a separate dissent that Roberts and Thomas joined.

  5. Sonshine135 says:

    “A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

    Bingo! The current judiciary proves that the constitution isn’t worth the 240+ year old paper upon which it is printed. Here are a few examples:

    – Random checkpoints can be set up to violate your 4th amendment rights.
    – Undo burdens placed on people for firearm ownership in violation of the 2nd amendment.
    – Arresting people for “hate speech”, and forcing people to provide insurance that goes against their religious beliefs in violation of the first amendment.
    – Extortion of state governments by the federal government (i.e. if you take federal money, you do as we say) effectively killing the 10th amendment.

    Is there any wonder why we are having major revolts at the ballot box in the western world?

  6. WVC says:

    Some are bemoaning this as a major loss for the “Pro-Life” movement, but it actually just highlights how frivolous the “Pro-Life” movement has become. It’s at Evelyn Waugh levels of irony. This “Pro-Life” argument as supported by Republican politicians consisted of ensuring that women get clean, safe locations and qualified personnel when it comes to killing their child to ensure that they don’t put their own life in any danger.

    Hmmmmm . . . it really is a mystery as to why the legal “Pro-Life” movement hasn’t made any real headway for the last several decades. Worse yet, there are some who advocate that we need a “Personhood” amendment in the Constitution! As the Supreme Court has clearly demonstrated, the actual words as written in the Constitution don’t have any real significance anymore, but, even worse, such an amendment would give the government the impression that it has the power to determine when someone is a Person or not.

    I sure could never see how that might backfire somehow.

  7. iamlucky13 says:

    ” Worse yet, there are some who advocate that we need a “Personhood” amendment in the Constitution! As the Supreme Court has clearly demonstrated, the actual words as written in the Constitution don’t have any real significance anymore”

    The Supreme Court still pays lip service to the Constitution. They’re not completely deaf to it, hence why we have had a few encouraging rulings in recent years, like DC vs. Heller, which affirmed that just because people live around politicians in the national capital doesn’t mean they forfeit all their 2nd Amendment rights.

    A personhood amendment would be too direct to pay lip service to. They’d be forced to plainly defy the Constitution or uphold it.

    Most significantly, it would flat out contradict the foundational argument of Roe-v-Wade – that because the Constitution does not declare the unborn to be persons who possess its rights and the self-evident rights upon which our country was founded, the unborn therefore are not persons.

    Of course, there isn’t a chance in the current environment of such an amendment even being proposed by the Senate, much less ratified by 3/4 of the states.

  8. WVC says:

    iamlucky13 – I am thankful that such an amendment would not be ratified. It’s my position that the government does not have the power to define Personhood (that being God’s department) anymore than it has the power to define when life begins (that being also God’s department), and that to give the government such a power is absurdly short sighted. It was the same foolishness that let the government get into the business of defining marriage (i.e. the Defense of Marriage Act – and, incidentally, defining Marriage is also God’s department) that has lead to the government now ordaining so-called same-sex marriages as valid. Once you give the government a power you lose control over how government chooses to use that power.

    Any “Pro-Life” advocate who actually thinks letting the government define what a Person is won’t end in Soviet Stalin sized problems is naïve to the point of being dangerous. Anyone who thought regulations ensuring the efficiency, safety, and cleanliness of abortion mills was a reasonable way to “restrict” abortion (and also voting Republican because Republican politicians are “Pro-Life”) was being equally naïve.

    Innocent as doves does not equal naïve. Wise as serpents does not equal bad.

    Government is NOT the solution. Giving the Government MORE power at this point is NEVER the solution. And I would suggest any Court that has so obscenely abused the Constitution could find lip services aplenty to deal with a “Personhood” amendment. You have to actually read some of the more outlandish rulings to get an understanding of how flexible their lips actually are. And, when all else fails, like Lincoln you just claim that you are violating the Constitution in order to save the Constitution.

    There are no political solutions to cultural problems.

  9. SaintJude6 says:

    I really enjoyed that book. It struck me that it should be required reading for all members of the Knights of Columbus.

  10. iamlucky13 says:

    @ Tony Phillips
    “Comment from England: One admirable thing about America is that democracy permeates from the highest levels right down into the smallest communities.”

    That’s not actually true, although unfortunately most Americans believe it is.

    At the highest level, the United States is a federal republic – it is a federation of states who each send their representatives to the government to collectively make decisions for matters common to the states – such as international relations, defense, and those internal laws necessary to protect universal rights and ensure good order between the states (regulating commerce, etc).

    At the federal level, nothing is handled in a democratic matter, even the election of the president. Rather, each state (internally voting democratically) makes their choice for president, and the state casts its “electoral college” votes. Likewise, the states each internally select their own representatives for Congress.

    This confuses a lot of people, but the reason for it is because in our federal system, the federal government gets its authority from the states, not the other way around. This preserves some measure of autonomy for each state from the others (or it was supposed to, before the common narrative that the US is a democracy ruled from the top down, rather than the bottom up started being passed off as fact). Therefore, the states internally make their choices about federal representation.

  11. iamlucky13 says:

    @ WVC

    “iamlucky13 – I am thankful that such an amendment would not be ratified. It’s my position that the government does not have the power to define Personhood (that being God’s department) anymore than it has the power to define when life begins (that being also God’s department)”

    Of course not. Yet even though we don’t have the power to define when life begins, nor that all people have an inalienable right to life, we do so anyways. Just like the liturgy needs rubrics to convey universal truths, the law needs definitions to accomplish its job of protecting rights.

    If the law is failing to recognize rights apply to a certain class of people, the law needs to be fixed. Better still would be for our culture to hold certain truths as being self-evident, but as it presently stands, the law assists with the denial of the self-evident.

    “Anyone who thought regulations ensuring the efficiency, safety, and cleanliness of abortion mills was a reasonable way to “restrict” abortion”

    This is true. It could never be more than a half measure. But it was a law that would have protected at least some lives, and it fit within the existing laws right up until the Supreme Court reinterpreted those laws.

    “Giving the Government MORE power at this point is NEVER the solution.”

    The point of enumeration of rights is not to give the government power, but to unambiguously take power away from the government.

    ” You have to actually read some of the more outlandish rulings to get an understanding of how flexible their lips actually are
    ….
    There are no political solutions to cultural problems.”

    I can not argue with that point. It is well said.

  12. MWindsor says:

    “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.”

    At what point can we say that they have surrendered the consent of the goverened?

  13. WVC says:

    @ iamlucky13

    As far as the idea of government is concerned, I likely don’t disagree with you on a theoretical level. However, I feel that the theory of American government went off the rails in 1861. You say that, “federal government gets its authority from the states, not the other way around” – but this simply isn’t true anymore. It’s no more true than the “checks and balances” between different branches of the government is true. Could Congress, theoretically, curb Executive branch overreach? Sure, but it never will. We’ve had several presidents in a row wildly exceed their limited authority, but no such thing as even a whisper of impeachment (consider of late the IRS scandal, the Fast & Furious gun scandal, the Hilary e-mail scandal . . . etc.) . Congress failed to even ban funding to Planned Parenthood AFTER all of the bad publicity video footage. If they couldn’t win that fight, they can’t win ANY fight. Could, theoretically, a Governor nullify an unconstitutional federal law in his state? Sure, but they don’t and won’t. Instead, you have folks like Jan Brewer actually cheering when the Supreme Court hands down its opinion that Arizona has absolutely no control whatsoever over her own borders. Why? Because otherwise her federal money would be cut and corporations would collude with the government to boycott her state. My local county school system has already announced that their bathrooms in all schools are transgendered so as to not lose Federal money – does that sound like the State is empowered?

    The reality of a Personhood amendment would be that, at some point in the not too distant future, it would be co-opted/interpreted to mean that Persons are only those people who agree with the governments current set of values. Just as, in the 1860s, those who didn’t agree with Mr. Lincoln’s war were branded as “treasonous” and had their personal property confiscated and were imprisoned without trial, so, again, would people who are “intolerant” or “hateful” show themselves to be beneath the level of an actual Person and thereby forfeit all rights as outlined in the Constitution. Does that sound absurd? Of course. But no less absurd than many Supreme Court Majority Opinions (seriously – reading Roe V. Wade is a mind-bending experience).

    You can’t give the government the power to define who consists of a Person and expect the government to not then abuse that power. We gave it the power to define marriage, and now the government has done exactly that, only not the way we thought it would.

    The federal government can no longer be limited or contained by the government (if, in fact, it ever could). Whatever can be done to actually break the paradigm and damage the actual mechanics is the only hope to slow down the leviathan (short of Divine intervention Flannery O’Connor/Old Testament style). It’s why so many folks support Trump. They’re not so concerned with Trump the person as they are with the idea that they finally have a monkey wrench to throw into the system and hopefully break a gear or two.

    Not that Trump will actually solve anything (no government solutions to cultural problems). He might buy us more time to get our own houses in order, but the first step I think everyone should make is to emphatically insist that government, at this point, will not fix anything. The longer we spend our time, talent, and money waging the “Pro Life” battle or even the “Religious Freedom” battle within the government arena the more ground we lose and the more easily we can be manipulated into thinking that “half measures” that endorse the “lesser of two evils” will ever accomplish any authentic good.

  14. WYMiriam says:

    Tony Philips: “We don’t have democracy in the UK, except for the very rare referendum; we have a parliamentary autocracy, in which look-alike parties select non-resident MPs to ‘represent’ their constituencies . . . . But the one failure in the American system is a Supreme Court that has usurped powers never dreamed of in your consitution. And no one seems to have the will to reign them in. Isn’t it time you had an Article 5 convention to put things right?

    We don’t have democracy here in the USA, either — as Benjamin Franklin said, we have “a republic, if [we] can keep it.” What our form of government has begun to morph into is a legislative “autocracy”, in which one party (which pretends to be two — variously referred to as the ‘Demican’ or the ‘Republicrat’ Party) lord it over a nation of people who have long since lost a great deal of the sense of personal responsibility — principally manifested in the huge public troughs at which the people feed, courtesy of the taxpayer.

    The Supreme Court is not the only failure in the American system of government; too many of us refuse to even register to vote, let alone show up to vote — and far too many of those who do show up to vote are ignorant of any of the actual policy statements of any of the people on the ballot. Many times they prefer to vote for the initial after a candidate’s name rather than the candidate’s positions on ANYthing at all.

    But non-voters and poorly educated voters are by no means the only failure in our governmental system. Congress has refused to rein in the Supreme Court, even though it (read: “they”, for it’s the individuals in Congress who act) has the Constitutional power to do so — and one way they can do so is to forbid the SCOTUS from hearing any more appeals of particular issues; another way is to impeach (admittedly difficult).

    And thank you, NO, we do NOT need an Article V convention to put things to rights! Do that, and the Constitution as we know it will disappear. The Founders left neither Constitutional guarantees for the make-up of the delegates to a constitutional convention, nor Constitutional limits to what such delegates would be able to do over against what they would be prohibited from doing. An Article V convention is a BAD idea.

  15. The Masked Chicken says:

    “Do that, and the Constitution as we know it will disappear.”

    I’m afraid it already has. The logician, Kurt Gödel, knew that there was a way to overthrow the Constitution hidden within it and Einstein told him to shut up about it during his immigration hearing to become a U. S. citizen, but Gödel blabbered anyway but, thankfully, the judge ignored him.

    Are we living Gödel’s proof? No, not yet. Our problems are the result of simple human greed, but Gödel’s results are still out there waiting for the right circumstances.

    Would the Founding Fathers recognize what we have done with the Constitution? I, rather, think not. They would have tarred and feathered gender-benders using incorrect bathrooms and to think that their Constitution could be used as cover for the killing of babies would have provoked them to burn the thing. They are not responsible for Amendments written by later shortsighted men, but, still, I would bet, that neither Jefferson nor Adams would be pleased.

    The Chicken