How Clarence Thomas' legal reasoning paves the way for abortion and LGBT rights to ‘go down in flames’

How Clarence Thomas' legal reasoning paves the way for abortion and LGBT rights to ‘go down in flames’
Sonny Perdue is sworn in as the 31st Secretary of Agriculture by U.S. Supreme Court Justice Clarence Thomas with his wife Mary and family April 25, 2017, at the Supreme Court in Washington, D.C.. Photo by Preston Keres

Justice Stephen Breyer sent a stark warning about his conservative colleagues in an unusual dissent — and Justice Clarence Thomas’ legal reasoning in that case should set off alarm bells.


The hardline conservative Thomas spent 17 pages chewing over the legal issues in his decision on the otherwise obscure Franchise Tax Board of California v. Hyatt lawsuit, but barely touched on the primary issue, argued legal affairs columnist Jay Michaelson for The Daily Beast.

“Hyatt was, in large part, about stare decisis,” Michaelson wrote, referring to the legal doctrine that means “let the decision stand.”

Michaelson said a 1979 case had previously decided a similar dispute, but the Supreme Court overruled that decision 5-4, along ideological lines, and tossed out Gilbert Hyatt’s claim.

“What was surprising is that stare decisis warranted only 318 words in Justice Thomas’ opinion, almost like an afterthought, and that Justice Thomas summarily waved away this important judicial doctrine,” Michaelson wrote. “If this is how the court’s conservatives treat sovereign immunity, how will they treat abortion rights?”

Thomas noted that stare decisis was “not an inexorable command,” and the conservative justice has made clear in his writings on Roe and Obergefell that he believes that doctrine is at its “weakest” when it’s used to uphold fundamental constitutional rights.

He then concludes that the Supreme Court precedent set for Hyatt was badly argued, according to his “originalism” political philosophy.

That’s bad news for abortion rights and LGBT rights, Michaelson warned.

“This is the central question in cases like Roe and Obergefell,” Michaelson wrote. “No one denies that abortion was banned for much of our country’s history, and that same-sex marriage would have been anathema to the Founders of the republic. The debate is over whether history gets a vote or a veto.”

“If this same standard is applied to Roe and Obergefell,” he added, “they would go down in flames.”

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