'Sad history': Supreme Court justices' opinions in birthright citizenship case

1. Thomas quotes Summa Theologica, laments ‘sad history' of 14th Amendment

Justice Clarence Thomas, the longest-serving jurist on the U.S. Supreme Court who was appointed to the bench by Republican President George H.W. Bush, issued a lengthy dissent. Thomas characterized the ruling as another chapter in “the sad history of the Fourteenth Amendment, which was designed and understood to secure equal rights for the freed blacks but has instead been repurposed for political projects that the Reconstruction Congress did not support.”

While Thomas didn't explicitly elaborate on the “political projects,” he cited his concerns about the misuse of the Fourteenth Amendment in a concurring opinion in Dobbs v. Jackson, which determined that the U.S. Constitution doesn't contain a right to abortion. He described the idea of “substantive due process,” which has been used in 14th Amendment jurisprudence for decades, as “legal fiction.” 

Thomas listed several examples of rulings that relied on the doctrine of substantive due process: Griswold v. Connecticut, which established a right to contraception; Lawrence v. Texas, which struck down state laws banning homosexual practices; and Obergefell v. Hodges, which established a right to same-sex marriage. He suggested that the justices “should reconsider all of this Court’s substantive due process precedents” because the doctrine is “demonstrably erroneous.”

Thomas added that he was open to considering “whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

In a footnote in his dissent in Trump v. Barbara, Thomas noted that “the baseline in most of the western world was often that only the children of citizens could be citizens.” He cited Summa Theologica, a work of the Catholic thinker St. Thomas Aquinas, as an example, noting that the document states “[A] citizen is defined to be one of whom both the parents are citizens.”