Give Me That Old-Time Judge Thomas

"Whether someone applies natural law is of phenomenal significance" - Senator Joseph R. Biden, Jr.

Justice Clarence Thomas recently celebrated his 77^th birthday, and he is fast approaching the exalted position of being the Justice with the longest tenure in American history. I have deep admiration and respect for him, both as a person and as a jurist. I’ve been fortunate enough to meet him a couple of times; a more generous and gregarious person, you’d be hard pressed to find. I wish him good health and many more years to come. But I do have one request: Let’s see his final years on the bench re-embrace the natural law. It is the most coherent thread connecting some of his most important views.

The salacious character assassination of the Anita Hill dust up stole all the headlines in the Fall of 1991, but a more important discussion took place on September 10 of that year when a still-lucid Senator Joe Biden “interrogated” (C-SPAN’s words, not mine) then-Judge Thomas on his interest in natural law. As shameful as it was for Biden (as a professing Catholic) to do so with the implication that natural law was inappropriate, as an obvious way to try to get pro-abortion Senators to vote against Thomas’s confirmation (cf. CCC 1954-1960), the exchange is still very much worth a listen. This is particularly so given the concessions of so many originalists and positivists today that textualism is missing something and we are indeed in a natural law moment.

As Senator Biden framed his unholy inquisition, “The only reason I asked you about natural law, is that is how you gained your reputation, rightly or wrongly. When you are spoken about by other lawyers, when you are spoken about in the press. I didn’t invent it. You are spoken about in terms of your speeches on natural law.” Not-so-sleepy Joe made some good points, for example: “Whether someone applies natural law is of phenomenal significance.” “There is not a single legal scholar that does not understand that there is a fervent, bright, and aggressive school of thought that wishes to see natural law further inform the Constitution than it does now; argued against by the positivists, led by Judge Bork.” “Judge Bork,” he continued, “devoted a chapter in his book about how those people who want to apply natural law … are wrong.” “Let no one misunderstand: this question informs every other application of the law in the Constitution. It’s that basic. It’s that simple.” He was right.

Judge Thomas famously demurred on his commitment to natural law, describing it as a merely academic thought exercise, one not intended for judicial application. But perhaps Justice Thomas’s time on the bench has ripened his views? It is never too late, and the natural law could help unwind some puzzling knots in Justice Thomas’s jurisprudence.

Justice Thomas recently joined the majority, and wrote a separate concurring opinion, in one of the October 2024 Term blockbuster cases, United States v. Skrmetti. There, the majority held, 6-3, that States may in fact ban the mutilation of children, er, “transgender affirming care,” consistent with the Constitution. The Court reached the right result, no doubt. I agree with Hadley Arkes’ view that the Skrmetti the conservative justices apparently see themselves as barred from speaking the truth here, having largely relied on a parade of “contingent harms” to justify much of their reasoning, and should have done more. And I also agree mostly with Josh Blackman’s observation that, but for the “shadow” of Anthony Kennedy, Skrmetti was an easy case—classical moral legislation that would be subject only to rational basis review.

But there is more to say here. Justice Thomas wrote separately in Skrmetti, critiquing the view that jurists are somehow beholden to so-called “expert opinion.” In particular, Justice Thomas singled out Buck v. Bell as an example of where “deference to expertise” worked to the Court’s “detriment” by adding the Court’s “prestige behind the eugenics movement.” Clearly, Justice Thomas believes Buck was wrongly decided. It has not been overruled, except in the “court of history” sense the Court has begun to invoke in recent years.

But notably, Justice Thomas has also signed on to opinions that relied on, or at least did not question, Skinner v. Oklahoma—the Supreme Court’s 1942 decision that struck down forced sterilization for habitual criminals on a mix of due process and equal protection grounds. See Obergefell v. Hodges (Roberts, C.J.) (dissenting) (noting that the Court’s marriage precedents, “repeatedly described marriage in ways that are consistent only with its traditional meaning” and “necessarily implie[d] a procreative component”); Planned Parenthood v. Casey (Rehnquist, C.J.) (concurring in part and dissenting in part) (relying on Skinner for the proposition that a husband has a “substantial” state-protectable interest in procreation, in relation to “spousal notification” requirements of abortion statute).

Might there be some tension here? Some online observers noted that Justice Thomas has recently called, explicitly, for the reconsideration of “all of this Court’s substantive due process precedents, including Griswold [contraception], Lawrence [sodomy laws], and Obergefell [gay “marriage”].” On what consistent theory are Griswold, Lawrence, and Obergefell all wrongly decided while Buck was similarly wrong and Skinner was right? Last I checked, there is no enumerated right in the Constitution to be free from forced sterilization, the same way there is no such right to have an abortion. One could easily imagine a substantive due process right to not be forcibly sterilized (Skinner approximates this move, with an added equal protection component), but Justice Thomas is the fiercest living adversary of “substantive due process” alive today, the theory on which Griswold, Lawrence, and Obergefell and many other cases rests. How to solve this puzzle?

The answer is, of course, the natural law. If a right exists to be free from forced sterilization (and I am in the camp that says it does), then it is owing to the natural law. You can call it “substantive due process” if you like. You can call it a “privilege or immunity” if you like (and I suspect, Justice Thomas may well like to). But there is no doubt that if, God forbid, the vitalists got their way and eugenics statutes began to rear their heads again in this country, if Justice Thomas were still on the Court, he would find a way to strike them down (I think a majority of the Court would) one way or another. Similarly, despite hinting as misgivings about the Supreme Court’s parental rights decision in Meyer v. Nebraska and Pierce v. Society of Sisters (also substantive due process cases—see Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring)), if the Court were presented with, say, a case in which a father was stripped of his rights for refusing to “transition” his children to the opposite gender (a case that is, unfortunately, not entirely hypothetical) I have no doubt that those who are otherwise critical of “substantive due process” would find a way to either: (a) not disturb Meyer and Pierce, or (b) “find” this right of parents in the penumbras and emanations of the Ninth Amendment or the Privilege or Immunities Clause. Similar results could come from a case bubbling its way up in Florida right now where a court is weighing what to do, post-Dobbs, with the clash between Pierce on the one hand, and a minor female who seeks an abortion under Missouri v. Danforth (which is still on the books, despite Roe being overturned).

Indeed, on the last day of the Term, the Court handed down Mahmoud v. Taylor, granting preliminary injunctive relief to parents who sought a religiously based opt-out from a Maryland public school’s immoral “LGBTQ+” “story time” for their young children. Justice Thomas joined the majority, but wrote a separate concurrence. Interestingly, rather than call into question the basis of Pierce, a la his Troxel concurrence, Justice Thomas cited Pierce repeatedly and favorably, noting its status as a “charter of the rights of parents to direct the religious upbringing of their children.” No reference here to the possibility that Pierce rests on shaky substantive due process ground, nor is there any suggestion (as in Troxel) that perhaps Justice Thomas views this right as existing viz. the Privileges or Immunities Clause of the Fourteenth Amendment. Funny how that works, but the tensions and apparent contradiction in his line of thinking would be readily solved by conceding the reality of natural law and its import for our system of ordered liberty in the United States.

As Pope Leo recently reminded the world, the “natural law” is “an essential reference point,” “valid in all times and places,” and “findings its most plausible and convincing argument in nature itself.” Justice Thomas’s presence on the Court has been a gift to our Nation. I’d love to see him put a bow on that gift by returning to the original controversy of his tenure: the natural law.