Michael Dorf suggests on the Take Care blog that if the pro-choice decision Roe v. Wade is rescinded, and then Congress acts to restrict abortions nation-wide, overriding State laws, Congress may be rebuffed by SCOTUS thanks to the acts of one renegade … Clarence Thomas:
Justice Thomas is a highly unlikely hero of the pro-choice movement. He raised eyebrows when he told Senators during his 1991 confirmation hearing that he didn’t “remember personally engaging” in discussions of abortion as a law student in the 1970s. And since his appointment, Justice Thomas has never voted to invalidate any challenged abortion restriction. Just two years ago, in a case from Texas, he wrote: “I remain fundamentally opposed to the Court’s abortion jurisprudence.”
Yet Justice Thomas has also indicated that he would like to see the power of Congress rolled back to its eighteenth-century foundations. Hence, in a 2005 case, he voted to strike down a federal law banning the local cultivation and use of marijuana, splitting with fellow conservative Justice Antonin Scalia. Most tellingly, when he joined the Court’s majority upholding the federal Partial Birth Abortion Ban Act in 2007, Justice Thomas emphasized that the Court’s ruling rejected a challenge based on the right to abortion but left open the possibility that the law might not be “a permissible exercise of Congress’ power under the Commerce Clause.”
Would Justice Thomas really strike down federal legislation restricting abortion? We may soon find out. Meanwhile, pro-choice groups should work hard to elect legislators who will protect abortion rights, and as a failsafe their lawyers should brush up on their states’ rights arguments. To paraphrase Donald Rumsfeld, you argue to the Supreme Court you have, not the one you might want or wish you had.
While it seems unlikely, SCOTUS Justices are not enjoined to party positions – remember Chief Justice Roberts’ decision in National Federation of Independent Business v. Sebelius, critical to preserving the ACA. If Justice Thomas does feel that Congress has reached for more power than the Constitution grants it, he may in fact be willing to vote to throw the abortion question to the States.
