‘Correct The Error’: Clarence Thomas Says SCOTUS Should ‘Reconsider’ Decisions Based on ‘substantive due process’

“We have a duty to ‘correct the error’ established in those precedents,” he continued. “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Thomas has been a longtime critic of “substantive due process,” a reading of the 14th Amendment that posits that the amendment’s due process clause applies to rights outside of strict legal procedures and rights not explicitly protected in the Constitution.

Thomas’ view of the 14th Amendment is that it “protects the processes by which your rights are adjudicated, not the actual rights themselves,” Jacob Meckler, a law clerk at the America First Legal Foundation, told The Daily Wire. For instance, the right to a firearm made explicit in the Second Amendment is a substantive right, whereas the Fifth Amendment right against self-incrimination is a procedural right.

In the case of Dobbs, however, the right to an abortion was read into the Constitution under the 14th Amendment while lacking an explicit basis using the due process clause.

Based on the reasoning in the Dobbs decision, the court should now revisit other cases based on the “substantive due process” theory, Thomas said. Notably, the justice wrote that the other legal rights based on the theory may still be valid, though the court must look for a different textual basis for them.

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