The concurring opinion by Justice Clarence Thomas in Dobbs v. Jackson Women's Health Organization is certainly turning heads. In that solo opinion, Justice Thomas calls for revisiting all of the Supreme Court's prior decisions holding that unenumerated rights are protected by substantive due process. It is a striking opinion, but it is also not anything new.
Justice Thomas wrote separately in Dobbs to reiterate two positions he has long held: 1) There are no substantive, unenumerated rights protected by the Due Process Clause of the Fourteenth Amendment; and 2) the Supreme Court should reconsider and overturn any prior constitutional decision that is "demonstrably erroneous." These are positions Justice Thomas has expressed before and, as before, these are positions that his colleagues on the Court have refused to embrace.
First, on the Due Process Clause, Justice Thomas has long argued (consistent with much academic commentary) that insofar as the Fourteenth Amendment incorporates enumerated rights against the states and protects unenumerated rights, this work is done by the Privileges or Immunities Clause, and not the Due Process Clause. From his Dobbs concurrence:
