Clarence Thomas, the only reliable conservative vote on the Supreme Court, appears to be taking a more activist role now that he’s on the court without Justice Scalia. We could only wish that he was the Chief Justice instead of the pusillanimous John Roberts.
The latest example came Monday when Thomas wrote in a concurring opinion that the court should not be afraid to overturn precedent.
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” wrote Thomas.
That philosophy would allow the court to overturn Roe v. Wade, the ruling that legalized abortion in all 50 states, but it also would have allowed the court to more quickly overturn Plessy v. Ferguson, the decision that had allowed states to discriminate against black people in education and other public accommodations under the rubric of “separate but equal.”
In fact, Thomas referred in his opinion to the court’s 1992 decision in Planned Parenthood v. Casey, which reaffirmed Roe, specifically by restricting the ability of states to limit access to abortion. Unfortunately too many lawyers worship precedent and don’t look at the underlying wrongs that precedent may protect. My guess is that Thomas is rebuking Chief Justice Roberts for his timidity and that Roberts will protect the status quo in upcoming abortion cases.
The other significant opinion by Thomas came last month and dealt specifically with abortion. The court upheld the right of Indiana to require that abortion victims must be buried or cremated. Thomas in his concurring opinion addressed the abortion movement’s association with Planned Parenthood founder Margaret Sanger and her interest in eugenics.
Again, touching on the matter of precedent, Thomas said that “the court will soon need to confront the constitutionality of laws like Indiana’s” because of “the potential for abortion to become a tool of eugenic manipulation.”
“This case highlights the fact that abortion is an act rife with the potential for eugenic manipulation. From the beginning, birth control and abortion were promoted as means of effectuating eugenics.
“Planned Parenthood founder Margaret Sanger was particularly open about the fact that birth control could be used for eugenic purposes. These arguments about the eugenic potential for birth control apply with even greater force to abortion, which can be used to target specific children with unwanted characteristics.”
The fact that Thomas is taking the lead as the court’s conservative conscience shows why it is vital for him not to resign in order to allow President Trump to appoint his replacement. Trump’s two appointees are still untested and neither may be as reliably conservative as Thomas. We need more justices like him, not fewer.
Frank Miele writes from Kalispell, Montana, at www.HeartlandDiaryUSA.com and is a columnist at Real Clear Politics. To read more of my columns about the Dishonest Media, the Deep Swamp, the failed presidencies of George W. Bush and Barack Obama, and Trump’s war to restore American greatness, read my “Why We Needed Trump” trilogy or “The Media Matrix: What If Everything You Know Is Fake?”. They are available at Amazon in paperback or Kindle editions.
Also visit Heartland Diary on YouTube at https://www.youtube.com/channel/UC1FmrOF2TF-njRznqoU4yjA
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It would be a tragedy for Thomas to resign his post. I always wondered why he never had much to say, thinking that maybe he used the interval since the Anita Hill embarrassment as a time of silent, public penance for how he and the harsh court of public opinion treated her truth. Time heals and redeems. Let's hope he uses his obvious gifts forcefully and wisely. At his age, what has he got to lose?