Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade

Would it do the same today, with over 250 laws meant to test the case pending in states across the country?

An otherwise obscure case decided this week, Franchise Tax Board of California v. Hyatt, suggests that a majority of the court would not.

Of the 18 pages in the majority opinion written by Justice Clarence Thomas, 17 are about the legal question in the case, which revolves around states’ rights, sovereign immunity, and the Constitution. It’s no surprise that Justice Thomas, in particular, wrote this opinion, as states’ rights have been a focus of his for three decades.

If this is how the court’s conservatives treat sovereign immunity, how will they treat abortion rights?

How? Let’s look at Justice Thomas’ reasoning.

The first prong is the most important. Here, Thomas finds that the 1979 precedent “failed to account for the historical understanding of state sovereign immunity.” But that’s not the same as the decision’s being of poor quality—it’s an imposition of Justice Thomas’ specific, historically oriented “originalism” philosophy.

There are, after all, many ways to evaluate the quality of a decision’s reading: its principled analysis of the rights in question, its integration of constitutional norms with contemporary reality, and so on.

Here, however Justice Thomas glosses over that jurisprudential debate and simply concludes that a Supreme Court precedent was badly argued—according to his standards.

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