The transparent misogyny of the Thomas court imperils women and threatens democracy…

The current Supreme Court has turned back the clock in American jurisprudence and has placed women and the rights of millions of Americans in jeopardy…again. This court’s draconian views represent a minority of the American people. The conservative court has gained a majority through appointments by presidents George W. Bush and Donald Trump, both of whom were elected as minority presidents. The Gorsuch seat is one literally stolen from Barack Obama by Mitch McConnell, whose Senate majority at that time denied Obama’s pick from even getting a hearing.

This court is using the Constitution as a cudgel to assert its raw power and set back the clock on American justice. The justices are taking back freedoms that only became recognized by the passage of the 14th amendment and its restatement of due process rights that were mentioned in both the fifth and ninth amendments to the Constitution. Basing their majority decision on Thomas’ obvious disdain for “substantive due process” upon which most of later courts’ decisions recognized rights inherent to citizens which are owed to their status as human beings rather than citizens:

  • “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (5th Amendment)
  • “The enumeration in the Constitution, of certain rights, shall not be construed to deny or others retained by the people.9th Amendment
  • “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 14th Amendment

The weight of the argument for substantive due process is not that it supplants Thomas’ view that there is only procedural due process to be considered when deciding. It has the concurrence of several of the well-considered justices before him. Opinions cited by Justices Brennan, Goldberg, Warren, and Douglas, among others, have recognized the importance of understanding that the language in the amendments is the founders’ recognition that it would be impossible to enumerate all the rights imbued upon persons by virtue of their humanity-or, if you prefer, by an expansive and giving creator. As Chief Justice Warren expressed in his opinion in Griswold:

The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights … I do not mean to imply that the … Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government … While the Ninth Amendment — and indeed the entire Bill of Rights — originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.

Or as Goldberg noted in attributing the rights to the writings of no less than Hamilton in the Federalist Papers, Number 84 :

I go further and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted, and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

Goldberg’s last sentence describes the position of Thomas and his assenters.

The poorly constructed decision handed down on Friday has a dual purpose-both of which serve the Republican agenda. Turning back the judicial clock to an era that recognized the dominance of a white-male ruling class would satisfy the base constituency of their party and punctuates their desire to retain power. In addition, it cannot be denied that the timing of the Court’s decision has the benefit of distracting the nation from the series of explosive hearings being conducted by the January 6 Committee.

We no longer live with a naive assumption of a non-partisan Supreme Court, blind to the political trends surrounding their decisions. This was a political, rather than judicial, decision. It is one that fulfilled a 50-year promise to overturn a seminal right of women to control their reproductive rights and protect their privacy. It is also a decision that relies heavily on the historical ignorance of Justice Alito and the vengeful retribution of Clarence Thomas. Thomas has been forever haunted by Anita Hill’s revelations at his confirmation hearings. His wife has been linked to the violent insurrection and is the talk of the J6 hearings now going on which has once again clouded his qualifications to serve. Hill was the brave woman who warned us of Thomas’ perversions. She described her work experience with Thomas as harassing. What she uncovered in her testimony was a man unqualified for the position-a truth for which Hill would be smeared by men (including a now chastened Biden) who thought they considered him the mistaken victim of her testimony. They accepted his word over hers:

Hill was smeared as a perjuring erotomaniac, and Biden, wasting a Democratic Senate majority, allowed a liar, a pervert and a sexual harasser to be elevated to a lifetime seat on the court.

Women’s rights had to take a back seat to Biden’s desire to foster bipartisanship with his conservative colleagues. And with Thomas, those conservatives got the justice of their dreams, the first in a line of right-wing radicals.

— NYtimes, Maureen Dowd, “The Radical Reign of Clarence Thomas, “ June 25, 2022

This decision is a travesty on several levels. It reasserts basic misogyny that was evident in the Framer’s exclusion of women’s rights as full citizens in 1789. It took women 130 years to gain their right to vote. It wasn’t until 1972 that women were acknowledged to have a right to their reproductive health. The Thomas Court has taken that away after 50 years of trying. The consequences of an America that lost its conscience amid the turmoil of the 1960s — -the assassinations of our brightest idealist leaders followed by a disastrous foreign war and the rekindling of the hard-right conservative movement. This was a movement at its core that was violent and abusive towards women, blacks, and gays. Let us not forget their murderous attacks on abortion clinics and doctors and medical personnel in the past, the post-1960 lynchings, and murder of blacks in our streets, or the violence and hatemongering toward gays.

This is a court manipulated and controlled by undemocratic forces that have little respect for women or others. Thomas has added to his opinion an invitation to his fellow bigots and misogynists to challenge rights acknowledged by the court when it was more democratic and espoused American values. This is a court that has lost its way- a court that supports violence and divisiveness. It is a court that believes that protections should be afforded to those with weapons, while the only votes that count are their own.

Originally published at https://vincerizzo.substack.com on June 25, 2022.

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Former president of the International Association of Laboratory Schools (IALS) and a founder of a charter school based on MI theory.

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