Thank you for sharing!

Your article was successfully shared with the contacts you provided.
One of the more fascinating (and frustrating) aspects of following the Supreme Court is trying to read the hints and feints that the justices sometimes drop into their opinions. It’s just like discovering a scrambled message in The Da Vinci Code or another unexpected coincidence on “Lost.” We scratch our heads wondering whether the writer is tempting us with a taste of something to come — or not even thinking along the same conspiratorial lines. In the abortion decision that the Court released April 18, Justice Clarence Thomas has left, peeking out like a half-hidden Easter egg, one of the more intriguing puzzles in a Supreme Court opinion. Read one way, Thomas’ concurrence in Gonzales v. Carhart, joined by Justice Antonin Scalia, might well be a bread crumb in a trail pointing toward an eventual striking down of the law prohibiting “partial-birth” abortions. Carhart, of course, has just upheld that law. What makes this hint worthy of a blockbuster thriller is that Thomas and Scalia are perhaps the Court’s two strongest opponents of abortion rights. It’s hardly what the political right would expect from its heroes — or the left from its nemeses. A PURE CONSERVATIVE The Carhart decision, on its face, seems like the culmination of what the left has feared for a generation and what the right has hoped for. In an opinion written by Justice Anthony Kennedy, the Court upheld a federal law that prohibits, and imposes jail time on doctors who perform, partial-birth abortions — i.e., late-term abortions in which a living fetus is partially delivered. The majority refused to overturn the law even though it contains no provision permitting the procedure to protect the pregnant woman’s health. And worse, from the perspective of liberals (and better, in the view of conservatives), the vote was 5-4 — with the fifth vote coming from Justice Samuel Alito Jr. He replaced Justice Sandra Day O’Connor, who had voted to strike down a similar law in an opinion that went 5-4 the other way just a few years ago. Everyone, it seems, agrees that the Court has turned a corner in the abortion wars. Now that conservatives on the Court have a majority, we all know what will happen next. Or do we? “Conservative” judges may follow “conservative” jurisprudence. But what does that mean in practice? Conservatives can support expanded government power, at least for the police and the military. They can also oppose it, either as libertarians, who view expansion of the power of any government as coming at the expense of the individual, or as federalists, who see a threat when the national government takes power from the states. Conservatives can focus on procedure, interpreting the Constitution by tracking the original intent of the Framers or by tracking the text that the Framers used. And conservatives can hold substantive views, such as supporting lower taxes and opposing abortion, contraception, and gay marriage. Sometimes these conservative views overlap — the Framers of the Constitution surely did not envision a specific right to contraception, the words of the Constitution don’t clearly support it, and many conservatives oppose contraception on moral grounds. And sometimes they do not — the Framers may not have been thinking about recognizing gay unions, but they did require the states to give “full faith and credit” to each other’s acts. According to a new biography, Thomas is “perhaps the purest conservative on the high court.” And there’s the rub. Thomas knows a conservative dilemma when he sees it. In Carhart, he spotted one. HITTING HIS LIMIT? To be sure, Thomas signed on to Kennedy’s main opinion. But he also chose to write a concurrence that shows the mind of a true conservative confronting a conundrum. On the question of whether the Constitution protects abortion of any sort, partial-birth or otherwise, Thomas is unrelenting: “[T]he Court’s abortion jurisprudence, including [ Planned Parenthood of Southeastern Pennsylvania v.] Casey and Roe v. Wade, has no basis in the Constitution,” he writes flatly. No surprise there. And he at least tips his hat to precedent, stating that Kennedy’s Carhart opinion in any case “accurately applies current jurisprudence,” including Casey. And then Thomas drops the Easter egg. The concurrence continues, “I also note exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.” What’s that about? It’s about a constitutional conflict within a pure conservative. Though it does not grab the headlines as much as abortion, one of the most fiercely fought battles on the Court for more than a decade involves the limits of federalism: How much power does the federal government have to act in areas that the states traditionally have regulated themselves? Perhaps the biggest clash on this score concerns the Constitution’s commerce clause. For most of the last half-century, the Supreme Court took an “anything-goes” approach: If Congress said that something might affect interstate commerce and was thus a proper object of federal legislation, the Court didn’t argue. But that changed in United States v. Lopez (1995), with a Supreme Court decision striking down a federal law prohibiting guns near schools. The link to interstate commerce was just too attenuated, the Court held. Then the Court delivered another blow in United States v. Morrison (2000), when it held that a significant section of a federal law criminalizing violence against women also did not have enough connection to commerce. Both of these opinions seem stereotypically conservative: one strikes down a gun-control law, and the other strikes down a civil-rights law. But Thomas didn’t really like either of them. He voted with the majority in both, but criticized the reasoning. In the gun case, he lamented that “our case law has drifted far from the original understanding of the Commerce Clause.” And in the violence-against-women case, he wrote, “By continuing to apply this rootless and malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Hardly the words of a happy federalist. THE CARROT Liberals, who have their own share of internal ideological conflicts, recognized a gap to exploit. They bet that they could get conservatives to follow this line of commerce-clause jurisprudence in a way that would help out a liberal cause. So in response to the federal government’s effort to crack down on the use of medical marijuana even when states had passed their own laws permitting such use, some defendants raised the commerce-clause rallying cry. They claimed that marijuana grown for individuals’ own medical use did not affect interstate commerce. In Gonzales v. Raich (2005), the Court rejected that argument. But this time, Thomas dissented. As Carhart wended its way through the courts, some pro-choice advocates saw a similar opening. They, of course, knew that Thomas staunchly opposes abortion. And they presumably knew about his opinions decrying an expansive commerce clause. So they scripted what looks like a Hail Mary pass in his direction. A brief submitted by the California Medical Association spent a fair amount of effort distinguishing Carhart from the medical marijuana case (because it’s not polite to explicitly ask a justice to ignore precedent). But the crux of the brief is a single sentence: “[I]f regulation of abortion can be federalized, the same approach could permit Congress to re-work laws relating to marriage, divorce, adoption, probate, and the ownership of property, to name just a few other areas traditionally left to state and local regulation.” This sounds like a siren’s song to Thomas, one meant to pull him toward a more limited commerce clause, in the process tipping the Court against the law prohibiting partial-birth abortion. The plan half-worked: It got his attention. In fact, it got so much of his attention that he felt the need to address the commerce clause, even though, as he wrote, neither the parties nor the lower courts had raised it. For this case, though, he insisted that the issue is irrelevant. But like every good suspense writer, Justice Thomas has left some tempting questions: What about another case? Is he inviting a new challenge to this (or another) abortion restriction based on the commerce clause? And would he view that sort of case differently? All we can do for now is read the tea leaves and stay tuned for a sequel.
Evan P. Schultz is an associate at Mayer, Brown, Rowe & Maw in Washington, D.C., and a former editor at Legal Times . This column expresses only his own views, which are not necessarily the views of his law firm or its clients.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.