The rule of law is in decline and the Supreme Court is to blame. So argued Justice Clarence Thomas in a powerful dissent in
Whole Woman's Health v. Hellerstedt, generally regarded as the Court's most important decision concerning abortion rights in decades. In an opinion written by Justice Steven Breyer, a 5-3 majority of the Court carefully scrutinized and ultimately struck down Texas legislation that required physicians who provided abortions to have active admitting privileges at a hospital within 30 miles of the location where the abortions were provided and required that any facility at which abortions were provided satisfy the state's standards for "ambulatory surgical centers." In his dissent, Justice Thomas not only criticized the majority's analysis of the legislation but launched a broadside against the Court's jurisprudence more generally. He denounced as constitutionally illegitimate the framework for constitutional decision-making that is associated with an enormously influential footnote in the 1938 case of
U.S. v. Carolene Products and which has become central to constitutional review. That framework requires judges to perform rigorous, searching ("heightened") scrutiny of the constitutionality of the government's actions in cases involving certain "fundamental" constitutional rights while using the government-favoring "rational-basis test" to evaluate governmental burdens on all other rights. "The Constitution," wrote Justice Thomas, "renounces the notion that some constitutional rights are more equal than others." Justice Thomas further argued that the Court's application of these "tiers of scrutiny" is so inconsistent that it "deliver[s] neither predictability nor the promise of a judiciary bound by the rule of law." He concluded: "[T]he entire Nation has lost something essential."
Although I do not agree with all of it, there is a great deal of force to Justice Thomas' critique, which is summarized by Ralph Rossum in an excellent
article at the Library of Law and Liberty. But Justice Thomas is missing something essential. Yes, the rule of law that the Constitution is designed to establish is in decline. Yes, the Supreme Court bears a substantial amount of responsibility for that decline. But more threatening to the rule of law than the Court's elevation of certain rights above others and its corresponding use of more rigorous adjudication in certain contexts is the fact that the kind of adjudication to which we are constitutionally entitled when we challenge assertions of government power
does not take place at all in most constitutional settings--assertions of government power are upheld after receiving the equivalent of a judicial rubber stamp. Until Justice Thomas and his colleagues acknowledge that constitutional review under the modern rational-basis test is tantamount to no review at all and make plain that judges must apply a different approach, the Constitution's promises of lawful rule and individual freedom will remain unfulfilled.
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