Contraception, gay marriage: Clarence Thomas signals new targets for supreme court

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<span>Photograph: Alex Brandon/AP</span>
Photograph: Alex Brandon/AP

Many Americans reacted to the supreme court’s decision to reverse Roe v Wade and remove federal abortion rights in the US with shock, but many also asked a terrified question: what might be next?

Related: Biden warns women’s lives in danger after supreme court overturns Roe v Wade – live

The conservative justice Clarence Thomas appeared to offer a preview of the court’s potential future rulings, suggesting the rightwing-controlled court may return to the issues of contraception access and marriage equality, threatening LGBTQ rights.

“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion to the ruling on Roe.

Griswold v Connecticut established a married couple’s right to use contraception without government interference in 1965. The court ruled in the 2003 case of Lawrence v Texas that states could not criminalize sodomy, and Obergefell v Hodges established the right for same-sex couples to marry in 2015.

In the decision written by Justice Samuel Alito, the conservative majority makes it clear that the decision in Dobbs v Jackson Women’s Health Organization should not be interpreted as a threat to other major precedent cases. But the court’s three liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – dismissed that logic as a farce in their fiery dissenting opinion.

“Either the mass of the majority’s opinion is hypocrisy or additional constitutional rights are under threat,” the liberal justices wrote. “It is one or the other.”

Thomas’s concurring opinion confirmed what many progressive lawmakers and reproductive rights advocates have feared for years. The end of Roe marks the beginning, not the end, of judicial overreach by the court’s conservative majority, they say.

“It is important that Americans understand that this supreme court and Republicans in Congress will not stop here,” said Pramila Jayapal, the chair of the Congressional Progressive Caucus. “It is clear [Thomas] and the court’s majority have no respect for other precedents that have been won in recent decades.”

Adam Green, co-founder of the Progressive Change Campaign Committee, warned that the court’s decision to overturn Roe would only intensify its “giant legitimacy crisis” with millions of Americans.

“Five Republican justices appointed by presidents who lost the popular vote are routinely making hyper-partisan decisions that take away the rights of Americans,” Green said.

For now, Thomas does not seem to have the support of his conservative colleagues in overturning other major cases, as they did not join his opinion. But the majority decision written by Alito could lay the foundation for discarding decades-old precedents that have become central to the American way of life, said Paul Schiff Berman, a professor at George Washington University Law School.

“The logic of Justice Alito’s opinion, as the dissent pointed out, would absolutely threaten the constitutional legitimacy of all constitutional privacy rights,” Berman said. “It goes against the institutional obligation to respect precedent. And it also goes against, as Chief Justice Roberts pointed out in his opinion, the principle that you don’t decide in a given case, more than you have to resolve in that case.”

Berman expressed concern that the Dobbs decision could weaken public trust in the supreme court, which has already been waning in recent years. According to a Gallup poll taken this month, only 25% of US adults say they have “a great deal” or “quite a lot” of confidence in the supreme court. That is the lowest reading in Gallup’s nearly 50-year history of polling public perception of the court.

“I think this opinion reflects the fact that a radical faction of the supreme court is moving in a maximalist direction, despite the fact that the American people as a whole are becoming increasingly progressive on this issue,” Berman said.

For the millions of Americans dismayed by the reversal of Roe, they have few options to change the composition of the court in the near future. Justices are appointed to lifelong terms, and the three conservative judges confirmed during Donald Trump’s presidency – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are all under 60.

Democratic lawmakers are instead looking at legislative ways to protect Americans’ fundamental rights, and demands for action will probably only intensify now that Roe has been overturned.

The House speaker, Nancy Pelosi, issued an urgent demand for Americans to support Democrats in the midterm elections this November, thus giving them an opportunity to codify the right to abortion into federal law and protect other crucial freedoms.

“Termination of pregnancy is just the opening act,” Pelosi said on Friday. “A woman’s right to choose, reproductive freedom is on the ballot in November. We cannot allow [Republicans] to take charge so that they can institute their goal, which is to criminalize reproductive freedom.”

But some progressives are looking beyond legislation to significant reform of the court itself. Immediately after the decision in Dobbs was announced, a number of progressives reiterated their calls to expand the court, which would allow Democrats to confirm more liberal justices.

“As we fight to make abortion legal at the federal level, I continue to reject the legitimacy of such an undemocratic institution,” the progressive congresswoman Ilhan Omar said on Twitter. “Expand the court.”

As of now, Democrats do not have the votes in the Senate needed to expand the court. That could change after November, if the American people decide to give Democrats the chance to do so.

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