The administration of George Washington University (GWU) in Washington, D.C., stood up for principle and rejected demands from its leftist students to cancel the teaching contract of Supreme Court Justice Clarence Thomas, who is a guest lecturer at its law school.
The latest student brouhaha erupted because of Justice Thomas’ concurring opinion in the Dobbs case overturning Roe v. Wade, in which he questioned the court’s continuing use of a doctrine known as “substantive due process,” a vehicle the court has used over the decades to enshrine so-called “unenumerated rights” into the Constitution.
Such rights, according to the doctrine as it developed in the court’s caselaw, must be “deeply rooted in this nation’s history and tradition,” and “implicit in the concept of ordered liberty.”
In other words, has this “right” been around a long time and does our “liberty” require it?
Since at least 1905, the Supreme Court began using the notion of substantive due process to enshrine a variety of “rights” into the Constitution, including such things as the right to privacy, the right to abortion, interracial marriage, same-sex sexual relations and same-sex “marriage,” even though they are not mentioned in the Constitution.
However, many legal scholars and judges consider substantive due process to be an oxymoron that has been imposed on the 5th and 14th amendments to justify judicial activism, creating “rights” by judicial fiat rather than leaving those issues to the state legislatures and Congress.
In other words, it’s understood that the 5th and 14th Amendments guarantee a fair legal “process” before one can be deprived of life, liberty or property. That is the plain language of those amendments. How, then, can a guarantee of a “procedure” be used to create a substantive “right”?
Something is either procedural or substantive, but it can’t be both, according to the doctrine’s critics, who make a fair point.
Justice Thomas has consistently criticized the doctrine since joining the bench in 1991. In Dobbs, Thomas agreed with the majority opinion, written by Justice Samuel Alito, that under the doctrine of substantive due process, abortion is not deeply rooted in the nation’s history and tradition, nor is it implicit in the concept of ordered liberty. That’s why he agreed with the majority that Roe must be overturned.
But then Thomas turned his aim directly at the doctrine itself:
“As I have previously explained, ‘substantive due process’ is an oxymoron that lacks any basis in the Constitution. … The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.”
Hardly provocative, as statements from a justice go. But then Thomas outlined the downstream effects of his position.
“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.”
That single sentence from Thomas’ concurrence blew leftists’ minds and created a furor among law students at GWU and elsewhere. Why?
It’s not hard to understand. Those cases – all invoking “substantive due process” – are basic to the LGBT agenda as well as abortion. Proponents of both, unwilling to trust their issues to the democratic process, have depended on courts over the years to legislate new substantive “rights” from the bench.
Griswold v. Connecticut, decided in 1965, created a “right to privacy” in the use of contraceptives, which ultimately led to the high court’s 1973 abortion decision in Roe v. Wade. Then came 2003’s Lawrence v. Texas which created a right to same-sex sexual relations; and Obergefell v. Hodges in 2015 created a constitutional right to same-sex “marriage.” Each of them built on the substantive due process doctrine and previous cases to create even more “rights.”
If Thomas ever convinced a majority of his colleagues to join his reasoning, the left’s agenda would get severely disrupted, forcing leftists to resort to democratic principles like passing laws they want, rather than enlisting courts to enact their preferred policies.
There’s no evidence that any other current justice is ready to join Thomas in looking to overturn any and all precedents based on substantive due process, but even the slight prospect of that was enough to trigger GWU’s more liberal students.
GWU students started an online petition to request that the university “remove Clarence Thomas from teaching at GW.” The petition currently has more than 7,200 signatures.
To its credit, the university responded exactly as it should have to the temper tantrum of its law students. In an email to “the George Washington University Community,” the administration said, “Justice Thomas has been a consistent critic of the Court’s legal philosophy on substantive due process for many years.”
The school’s law students, mostly in their early- to mid-twenties, may not be familiar with Thomas’ history on the subject. If they had researched the issue for 10 minutes, they could have figured it out rather easily and avoided the feigned outrage.
The email continued:
“Because we steadfastly support the robust exchange of ideas and deliberation, and because debate is an essential part of our university’s academic and educational mission to train future leaders who are prepared to address the world’s most urgent problems, the university will neither terminate Justice Thomas’ employment nor cancel his class in response to his legal opinions.”
Kudos to GWU’s administration for taking the proper approach to dealing with its irate students.
It used to be, in this country, that if we disagreed with someone, we used our own speech to convey a different perspective and hopefully win those we disagree with over to our position. These days, however, the woke Left demands that people they disagree with lose their jobs and be forever canceled from polite society.
Hopefully, GWU’s message to its students in response to this kerfuffle over Clarence Thomas might convince a few of its future lawyers to reconsider their actions and act more in keeping with a profession that values the clash of ideas and the power of persuasion over brute force.
Photo from Wikimedia.