I wrote on June 24 about the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, in which a majority of the court overruled Roe v. Wade, and argued that the two important opinions are not the majority opinion and the dissent, but Chief Justice John Roberts's opinion concurring in the decision but not the reasoning, and Justice Clarence Thomas's opinion concurring in both the decision and the reasoning. I discussed the chief justice's opinion. Justice Thomas's opinion also merits scrutiny.
Justice Thomas wrote his concurring opinion not so much for the rest of the court - none of the other justices agreed with his views - but as a guide to state legislatures and the Federalist Society on what to challenge next. He focused on the doctrine of substantive due process, and listed several cases that he wants the supreme court to overrule when it gets the chance, among them the Obergefell v. Hodges (2015), protecting same-sex marriage, Griswold v. Connecticut (1965), protecting married persons' access to contraceptives, and Lawrence v. Texas (2003), preventing Texas from criminalizing private sexual acts between consenting adults. He gives his game away in his two closing sentences: "Substantive due process conflicts with that textual command [the due process clause] and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity."
What he means by substantive due process is this. If you are indicted for murder, the state cannot take away your life or liberty (i.e., execute or imprison you) without affording you the due process of law: the right to a lawyer, the right to cross-examine witnesses, the right to be tried by a jury of unbiased persons, and so on. These are all rights to have a fair process, not rights to have a fair result. The idea of substantive due process is that as a citizen you have a constitutional right to have not just a fair process, but also a fair result.
In other words, if you are actually innocent of the murder, then you have a substantive due process right not to have the state execute you anyway - at least, you used to have that right. The court started 29 years ago to go down the path to which Clarence Thomas now points. In Herrera v. Collins (1993), a case from Texas, a majority of the supreme court held that a state does not violate the federal constitutional right to due process of a United States citizen if the state convicts and executes him for a murder that he did not commit, as long as the state provided the defendant with a fair trial and a proper appeal.
Justice Thomas has shown the nation the legal future, and it looks a lot like the past.