In his Whole Women’s Health v. Hellerstedt dissent, Justice Clarence Thomas castigated the Court for playing politics. Prominently referencing the late Justice Scalia, Thomas expounded on why Hellerstedt prolongs “the Court’s habit of applying different rules to different constitutional rights.”
Thomas’s dissent critiqued the Court’s gradual development of many context-specific standards of review, also known as levels of scrutiny. For example, in Planned Parenthood v. Casey, the Court applied an “undue burden” standard to generate a less controversial precedent than Roe v. Wade. The Hellerstedt majority in turn morphed the Casey “undue burden” standard into a new “burdens-and-benefits balancing test.”
Standards of review do not come from the Constitution. They actually stem from a footnote in United States v. Carolene Products, issued in 1938. The Court later “seized upon [the footnote] to justify special treatment of certain personal liberties” and crafted two standards: “strict scrutiny” and “rational basis” review. Overtime the standards multiplied into a “morass of special exceptions and arbitrary applications.” Thomas views Hellerstedt as just the latest example of this troublesome trend.
Justice Thomas explained that by treating “some constitutional rights [as] more equal than others,” the Court risks “reducing constitutional law to policy-driven value judgments until the last shreds of legitimacy disappear.” The logic is simple: “[a] law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment.” The Court should apply only one standard.
Thomas quoted Justice Scalia in a compelling final paragraph:
Today’s decision will prompt some to claim victory, just as it will stiffen opponents’ will to object. But the entire Nation has lost something essential. The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.
Thomas’s reflection on the past eighty years of constitutional adjudication comes at a fitting time. Delegitimized by decades of its own politically-motivated decisions, the Court now finds itself at a jurisprudential crossroads, having lost a crucial colleague. In the interest of the fundamental constitutional principles of liberty and equality, the Court would be wise to pay closer attention to Justice Thomas’s Hellerstedt dissent and dispense with its manufacture of standard-less standards.