There might be a pedestrian explanation. Perhaps the pile of error that's accreted in substantive due process jurisprudence is too daunting at this point and 77-yr old Thomas just doesn't feel like wading into it. He might also be unable to find qualified clerks who can make that leap.
Hard to shake perceptions and undo decades of error. We've got all the "general welfare" crap piled up too. I'm reminded of how decades of failure to enforce the US borders, practically the only reason to have a State with a professional military, has rendered their enforcement perceptually unfair. Now you've got huge swathes of the population who've never known otherwise.
There might be a pedestrian explanation. Perhaps the pile of error that's accreted in substantive due process jurisprudence is too daunting at this point and 77-yr old Thomas just doesn't feel like wading into it. He might also be unable to find qualified clerks who can make that leap.
Hard to shake perceptions and undo decades of error. We've got all the "general welfare" crap piled up too. I'm reminded of how decades of failure to enforce the US borders, practically the only reason to have a State with a professional military, has rendered their enforcement perceptually unfair. Now you've got huge swathes of the population who've never known otherwise.
Except he routinely calls for the wholesale rexamination of substantive due process and has been doing so for years. He did it just last Term.