The Continuing Despotism of Substantive Due Process

Having already commented upon Justice Samuel Alito’s leaked opinion in Dobbs v. Jackson Women’s Health Organization, the most interesting opinion to discuss now that the decision has dropped is Justice Clarence Thomas’ seven-page concurrence. At the heart of Thomas’ opinion is a brief reflection on liberty and despotism in American government today that transcends narrow legal analysis and implicates the basic principles of American politics. 

It is no wonder journalists scribbled their usual nonsense about Thomas and missed its significance entirely. (Of the dissent, I can charitably say that it more resembles the warbling of the mechanical doll in Tales of Hoffmann than it does jurisprudence.) 

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