On Thursday, Justice Clarence Thomas made a surprising proclamation: A celebrated ruling against school segregation—which, along with Brown v. Board of Education, abolished the doctrine of “separate but equal”—was wrongly decided. That decision, 1954’s Bolling v. Sharpe, compelled the federal government to abide by equal protection principles. It forms the basis of countless landmark civil rights decisions over the last 70 years.
And now, Thomas declared, it should be overturned.
The justice’s condemnation of Bolling came in the form of a concurrence to U.S. v. Vaello Madero, an 8–1 decision upholding the denial of Supplemental Security Income benefits to residents of Puerto Rico. But Thomas’ opinion is not really about that unfortunate ruling. Rather, his opinion marks the latest chapter in a career-long quest to replace long-established precedent with a confused, slapdash substitute based on amateur historical analysis and tendentious conservative law review articles. In 15 muddled pages, the justice promoted a series of sea changes in the law, suggesting that the court should legalize sweeping discrimination against noncitizens and erase modern equal protection jurisprudence.
If embraced by the court, Thomas’ view would wipe away precedents limiting discrimination on the basis of sex, sexual orientation, disability, national origin, and, in many contexts, race. It would also relegate noncitizens to second-class status, depriving them of the most basic rights. The nation might reasonably expect such a radical diminution of liberty to be rooted in a clear and definitive interpretation of the Constitution. But Thomas offered no such certitude, acknowledging instead that “my conclusions remain tentative.”
Although conservatives often credit the justice for his alleged consistency, he is, in fact, one of the most erratic and capricious justices in the history of the court. In his eternal quest to divine the original meaning of the Constitution, Thomas zigzags wildly between cases, seeking to destabilize the law on the basis of his underinformed stabs in the dark.
The justice’s solo concurrence in Vaello Madero is a perfect illustration of this problem. That case revolved around the federal government’s refusal to extend important benefits to elderly and impoverished residents of Puerto Rico. This denial is cruel, irrational, and racist. And yet, the court held, it does not violate “the equal-protection component of the Fifth Amendment’s Due Process Clause,” because Congress has “a rational basis” for discriminating against Puerto Ricans. (In short: Puerto Ricans pay fewer taxes, so they can receive fewer benefits.)
So Vaello Madero is an equal protection case—but the court did not apply the 14th Amendment’s equal protection clause. Why? Because that clause applies only to the states, not the federal government. The Supreme Court ran into this conundrum when deciding the school desegregation cases in 1954. Brown was easy enough, since it involved state segregation. But its companion case, Bolling, was trickier, since it involved Congress’ segregation of public schools in the District of Columbia. It would be absurd for the Supreme Court to desegregate schools in every state while permitting it in the nation’s capital. So the justices turned to the Fifth Amendment, which bars the federal government from denying “liberty” without “due process of law.” This liberty, they decided, includes the same principles of equality enshrined in the 14th Amendment. Thus, Congress has no more power to segregate schools than the states.
That solution aligns with myriad Supreme Court precedents, both before and after 1954, that due process protects “substantive” rights, not just procedural ones. And it has spawned myriad precedents striking down federal discrimination on the basis of sex, sexual orientation, race, and other classifications. (It was, for example, at the heart of the court’s decision striking down the federal ban on same-sex marriage.) In his concurrence on Thursday, however, Thomas argued that the court should wipe away this entire area of jurisprudence. The Fifth Amendment’s due process clause, he argued, does not guarantee any substantive rights or prohibit any invidious discrimination. So all these precedents, including Bolling, were wrongly decided and should be overruled.
What, if anything, should replace them? Thomas proposed elevating the 14th Amendment’s citizenship clause, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language might not sound like a source of individual rights outside of American citizenship. But Thomas asserted that the clause guaranteed equal citizenship by forbidding the federal government from “denying citizens equality with respect to civil rights,” specifically on the basis of race.
There’s nothing inherently wrong with this idea—if it weren’t pitched as a substitute for a much larger set of rights that apply to far more people. For instance, Thomas speculated that the citizenship clause bars only racial discrimination, and even then, only “with the respect to civil rights.” So other forms of federal discrimination, like sexism and homophobia, are kosher. Moreover, the category of “civil rights” is actually quite narrow, encompassing only basic liberties like the right to own property, sue, and sign contracts. As historian Eric Foner has explained, when the 14th Amendment was ratified, “civil” rights were distinct from “political” and “social” rights, which include the right to vote, get married, and generally exercise the bedrock liberties of a free society. According to Thomas, the Constitution protects none of these rights from federal encroachment.
Then there is the biggest issue: The citizenship clause (obviously) applies only to American citizens, leaving everybody else out in the cold. If it replaced the current regime, then the federal government would be free to engage in rank discrimination against noncitizens. Nonnaturalized immigrants would be relegated to formal second-class status, denied the fundamental rights accorded to other Americans.
In fairness to Thomas, this position corresponds with his broader hostility toward the rights of noncitizens. The justice believes that the Bill of Rights’ limitations on state governments apply through the privileges or immunities clause, which protects only “citizens,” not all “persons.” In his view, states are free to deny the entire panoply of liberties—free speech, religious exercise, freedom from unreasonable searches, and so on—to nonnaturalized immigrants. Only American citizens, he thinks, can vindicate these rights in court.
Where does Thomas get these ideas? Largely from scholarship produced primarily by law professors with membership in the Federalist Society. These scholars are forever publishing new law review articles that purport to identify the true meaning of the Constitution. Like Moses descending Mount Sinai to reveal the Ten Commandments, many of their claims are presented as unquestionable, infallible, almost divinely inspired. These professors then author amicus briefs that lobby the Supreme Court to adopt their interpretations.
Thomas has proved uniquely susceptible to these appeals. And so, of all the current justices, he is uniquely willing to flip-flop on constitutional disputes of immense import. (He has even disavowed his own opinions for the court.) No doubt, a good judge should be open to persuasion when their prior convictions are called into question. The problem is that, for the most part, no person, living or dead, can ever be certain about the meaning of the Constitution. Even the men who wrote it disagreed fiercely about the document they authored. Those debates persist today, even among the small cadre of scholars with Thomas’ ear.
Consider the privileges or immunities clause, a moribund provision that Thomas seeks to elevate to the center of constitutional law. Some scholars say this clause enforces the Bill of Rights against the states, the view Thomas holds. Others believe it enforces those rights and other, unenumerated rights. Still more say it does not guarantee any specific rights, but merely bars states from granting some citizens more rights than others. How did Thomas decide the first position is correct while the other two are not? It’s a mystery how, exactly, the justice chooses to latch onto a specific theory, then demand that the Supreme Court constitutionalize it. But whatever his process, this method is a surefire way to destabilize the law, keeping Americans in a perpetual state of suspense about what rights will be granted or taken away on each Supreme Court opinion day.
To his credit, Thomas does not pretend to believe in stare decisis, or respect for precedent. He thinks the court should overturn precedent, like Bolling, any time a majority concludes it was “demonstrably erroneous.” The deceptive allure to this simplistic solution conceals the fact that it’s a recipe for chaos, as well as an abrupt contraction of rights that most of us have come to take for granted.