JANUARY 20: (L-R) U.S. Supreme Court Associate Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh the U.S. Capitol on January 20, 2025 in Washington, DC. Chip Somodevilla/Pool via REUTERS
Former federal prosecutor and legal analyst Harry Litman is sounding the alarm about a dissent from Justice Clarence Thomas.
In a column for The New Republic on Friday, Litman cited the ruling in the Trump v. Barbara case, which upheld the U.S. Constitution's birthright citizenship provisions. While the ruling set the interpretation of the law, the importance of a dissent shouldn't be lost.
“It has been a tradition in the United States of dissents becoming the law of the land. So you’re writing for a future age, and your hope is that with time the Court will see it the way you do," explained the late Supreme Court Justice Ruth Bader Ginsburg, who passed away in 2020.
“Because the questions are hard, and because they cause disagreement among the people, it is not surprising that the justices of the high court will also disagree,” legal historian Melvin I. Urofsky wrote in his book Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue.
“The dissenter will point out what he or she perceives to be the weakness of the majority opinion, the faulty constitutional reasoning, or a failure to understand the actual facts of the case. The dissenter is telling the majority, ‘Wait. I think you have this wrong. You need to look at that constitutional clause and its history again. You need to ask other questions.”
Edward Hartnett, a professor at Seton Hall University Law School, said, “A dissent circulated inside the Court has the potential to change another justice’s mind. What was first circulated internally as a draft dissent might turn into a majority opinion, while what was first circulated as a draft majority opinion might turn into a dissent.”
In Barbara, Justice Clarence Thomas dissented in a much longer opinion, making the argument that the majority had completely misread the 14th Amendment. According to him, the ruling “won’t stand the test of time."
What made it particularly controversial, however, is that he repeated the Trump administration's argument that the "Citizenship Clause" was meant to protect the children of formerly enslaved people, not children of temporary visitors or people in the country unlawfully. Thomas also invoked the Dred Scott era and quoted Frederick Douglass to support his interpretation.
Litman explained that the significant part of the dissent is that it attempts to reframe the constitutional amendments during Reconstruction as far narrower than history has before. Justice Ketanji Brown Jackson responded to Thomas in her dissent, pushing back against his assertions and accusing him of distorting the 14th Amendment’s intended purpose, and of drawing a disturbing distinction between Black Americans and the children of immigrants, migrants or even visitors.
Litman fears that the conservatives on the Court are in a kind of Hail Mary age where they're aggressively pushing their far-right agenda by revisiting already-settled constitutional law.