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The Supreme Court Isn’t As Conservative As Clarence Thomas

Justice Clarence Thomas’s concurring opinion in the Supreme Court’s decision to overturn Roe v. Wade made many observers think he wanted to overturn other rights that Americans have become accustomed to. But the rest of the court may not be ready to follow Thomas quite that far.


Transcript

Amelia Thomson-DeVeaux: Overturning Roe v. Wade was just the beginning. At least, that’s what Justice Clarence Thomas suggested in his concurring opinion when the Supreme Court voted 5-4 that there is no constitutional right to abortion. Thomas wrote that in the future, he wants the court to take a second look at some other landmark rulings that established fundamental rights.

Those rulings include Griswold v. Connecticut, the 1965 decision that gave Americans the right to obtain birth control; Lawrence v. Texas, the decision that struck down anti-sodomy laws; and Obergefell v. Hodges, the 2015 decision that established a constitutional right to gay marriage. Thomas said that he thinks the reasoning underlying all these opinions is flawed in the same way Roe was — that the Constitution doesn’t address those rights and there’s little support in the American legal tradition for them.

If you’re a centrist or liberal, the idea that the court might be about to unravel lots of constitutional rights, not just abortion, might sound pretty scary. But although Thomas has become more powerful as the court has moved right, it’s worth remembering that he is consistently the most conservative justice on the court, including this term.

The people who will really determine where the court lands on these issues are the justices in the middle.

So, who are those justices? Every year we take a look at the ideology of the Supreme Court using the Martin-Quinn scores, a metric that looks at how the justices voted in a specific term. This year, Brett Kavanaugh is the median justice. But, honestly, he doesn’t look that different from Chief Justice John Roberts, Justice Neil Gorsuch or Justice Amy Coney Barrett.

Let’s be clear — these justices are not moderates. They’re very conservative. But they may have limits on how far to the right they’re willing to go.

Take Kavanaugh: He voted with the conservatives on all the big cases this term. But he also dropped a few clues about his stances on other issues.

For one thing, he said in his own concurring opinion in the case that overturned Roe that he doesn’t think the U.S. Constitution has anything to say about abortion. Which means, at least according to what he says right now, the Constitution also doesn’t prohibit abortion.

Kavanaugh also said that he thought the right to travel out of state for an abortion is protected by the Constitution. That’s also relevant because some state legislators who oppose abortion rights are already talking about passing laws to keep women from traveling for abortions.

How about the other justices who fall somewhere in the court’s ideological center?

We know Roberts isn’t a fan of overturning big, high-profile precedents. But we still don’t know much about Barrett since she’s been on the court for less than two years. She did vote with the majority 87 percent of the time in divided cases this term, which suggests she’s pretty close to Kavanaugh. Gorsuch, on the other hand, has been willing to flip to the liberal side on a few issues, and he’s generally more suspicious of government authority than the other Trump appointees are. But on social issues like abortion, he’s very consistently conservative.

The important thing to remember here, though, is that the direction of the court ultimately won’t be dictated by how far the most conservative justice wants to go. It will be shaped by what justices like Kavanaugh will do.

So the question is, does Kavanaugh, Barrett or Gorsuch want to overturn the right to birth control or same-sex marriage? They’ve all been evasive on these subjects in the past, but we might find out what they think soon enough.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

Michael Tabb is a video and motion graphics producer at FiveThirtyEight.

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