Yo, Clarence!

In his concurrence to Samuel "Sammy the Bullshitter" Alito's abomination of a decision in Dobbs v. Jackson that ends the federal right to abortion, Clarence Thomas writes:

... in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. ... After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, 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.

That's Thomas arguing for rolling back the rights to contraception, same-sex relationships, and same-sex marriage, respectively.

(By the way, to support his views in his concurrence, Thomas nearly exclusively cites his own words from other decisions, dissents, and concurrences. That he seemingly can't cite other Justices suggests something rather, um, lonesome about his views, doesn't it? That's quite a position for a Supreme Court Justice to find himself in, unable to cite anyone who agrees with him. Even so, he's willing to impose his singular and unrepresentative views on 330-odd million of us. That's some humility and self-restraint you have there, Clarence.)

But I seem to recall another exceedingly controversial — indeed, once-illegal — marriage-adjacent practice, namely, marriage between "the races". What about that, Clarence?

I hear only deafening silence from your corner of the room. However, a bystander is whispering in my ear. What's that? You say Justice Thomas himself is married to a woman considered not of the same race as he? Ohhh. I can see why it might be exceedingly inconvenient for him to broach that topic. Mm, yes.

However, there is such a thing as principle, isn't there, Clarence? It scarcely befits you, a self-proclaimed impartial arbiter of the Constitution and the law, to exempt yourself from your own judgment of what does and doesn't pass Constitutional muster. That would hardly be equal treatment under the law, would it? In fact, exempting yourself from the logical consequences of your judicial principles would make you — perish the thought! — a hypocrite, wouldn't it? And not just any hypocrite, but a hypocrite who has the final word, more or less, on any legal controversy in the land. That's hypocrisy and self-dealing on a level to which most of us can never aspire.

I'm not the only one who noticed that Thomas left out any reference to interracial marriage:

Jim Obergefell, the plaintiff behind the Supreme Court's landmark ruling on same-sex marriage, said Friday that Justice Clarence Thomas omitted Loving v. Virginia on his list of Supreme Court decisions to "reconsider" because it "affects him personally."

"That affects him personally, but he doesn't care about the LGBTQ+ community," Obergefell said on MSNBC's "The Reid Out."

Harsh. But true, though, eh, Clarence?

In fact, it's not just that you don't care about the LGBTQ+ community, your hidebound religious sect positively loathes that community, doesn't it? You're fine with dumping on that community, or on any practice, like contraception, that offends your sect, aren't you? You and your fellow religious fanatics have no reason other than your religious strictures for going after these activities and people, do you?

Silly me, thinking that the very arbiters of the First Amendment's Establishment Clause would themselves honor that clause as binding on themselves. ("It only mentions Congress, and we're not Congress!!", I hear you cackle in glee.)

But I've wandered from the main point.

The Ninth Amendment of the Constitution states:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

As Justice Kennedy wrote in Lawrence v. Texas:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

However, as Scalia observed:

... the [Ninth Amendment’s] refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.

(cited in note 5 of that congress.gov page)

In short, a person with human feeling and empathy will find, as some Justices have, more rights for people in the current Constitutional text. Scalia, Thomas, Alito, and their fellow reactionaries who recoil from "the manifold possibilities" of modern life will take those rights away on the grounds that they're not spelled out in the Constitution.

So the only long-term defense against the reactionaries on the Court is to list, with tedious specificity, the rights we want protected, via Constitutional amendments. Otherwise, there's no recourse against the Alitos of the world middle-fingering us.

That goes for your right to marry a woman of a different race, too, Clarence. Don't bet against other federal judges, including your five allies among the current Justices, revisiting that unenumerated right during your lifetime tenure. Even from your lofty perch you must have noticed that white supremacists are out, very loud, and very proud these days. They might like your wife, who puts out authoritarian-friendly noises they can construe to be supportive, but don't assume they like you. If you want your marriage to continue being recognized across state lines, I'd start gathering signatures if I were you. A judge is supposed to avoid political activism but you've never let that stand in your way, so go to it.