Clarence Thomas goes to war against the rights of non-citizens

This is what happens when you have judges who don't believe that anything is settled.

CREDIT: Chip Somodevilla/Getty Images
CREDIT: Chip Somodevilla/Getty Images

The Supreme Court handed down a brief opinion on Wednesday establishing that states may not violate the Eighth Amendment’s ban on “excessive fines.” Every member of the court agreed with this outcome in Timbs v. Indiana, and every member but Justice Clarence Thomas joined a majority opinion by Justice Ruth Bader Ginsburg.

Yet, while the result in Timbs was unanimous, Thomas and Neil Gorsuch both penned separate opinions which could have absolutely breathtaking implications for non-citizens living in the United States. Under Thomas’ opinion, states would be free to violate the Bill of Rights when the rights of a non-citizen are implicated. Gorsuch’s opinion does not go quite as far as Thomas, but Gorsuch suggests that he may do so in the future.

That would mean that a state government could potentially censor the speech of immigrant activists, raid non-citizens’ homes without a warrant, or even subject many immigrants to cruel and unusual punishments such as flogging.

Thomas’ disagreement with his colleagues turns on a distinction between two different provisions of the Fourteenth Amendment. Prior to this amendment, the Bill of Rights was understood solely as a list of limitations on the federal government — states were free to violate the Bill of Rights so long as they complied with their own constitution.


The Fourteenth Amendment, however, established that there are certain rights that the states must honor as well, and the Supreme Court has held that most of the Bill of Rights are “incorporated” against the states via this amendment. The holding of Timbs is that the Eighth Amendment’s ban on excessive fines is one of the rights incorporated against the states.

The primary drafter of the Fourteenth Amendment believed that this process of incorporation would happen because the amendment provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Yet, in 1872, the Supreme Court largely deactivated this Privileges or Immunites Clause in a widely criticized opinion.

Subsequent Supreme Court decisions held that most of the Bill of Rights is incorporated against the states through a different provision of the Fourteenth Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law.”

In Timbs, Thomas criticizes his court for shifting attention away from the Privileges or Immunites Clause and onto the Due Process Clause. “Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with ‘process,'” he writes, “I would hold that the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.”

Gorsuch, meanwhile, penned a less committal opinion suggesting he may agree with Thomas in a future case. “As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.”


It’s an awkward disagreement because, as an historical matter, Thomas has a great deal of evidence on his side — evidence that I acknowledge in my own book on the Supreme Court. Thomas is also right that the text of the Privileges or Immunities Clause better lends itself to protecting substantive rights than a separate clause that deals with procedural rights.

But the stakes in this fight are simply enormous. The Privileges or Immunities Clause only protects “citizens of the United States.” The Due Process Clause, by contrast, protects “any person.” So if Thomas’ views were to prevail, that would effectively mean that state governments are not bound by the Bill of Rights when they act against non-citizens.

As a general rule, judges follow the rule of stare decisis, which provides that they should be very reluctant to cast aside previous decisions. There are many reasons for this rule. States and individual actors come to rely on past decisions, and should not be surprised by a sudden change in the law. Legal provisions are often ambiguous, so it is more important for the courts to follow one interpretation consistently than to constantly reassess which of many possible interpretations is correct. The Constitution itself should not effectively be rewritten every time a different political faction gains control of the Supreme Court.

Thomas and Gorscuh, however, both tend to be very skeptical of stare decisis as a concept. Gorsuch has a record of lecturing his colleagues about the need to toss out old legal rules even in minor cases where litigants really just need to know what the law is. Thomas, according to the late Justice Antonin Scalia, “does not believe in stare decisis, period.”

Millions of immigrants have made their lives in the United States on the assumption that the Bill of Rights applies to them. Thomas, and most likely Gorsuch, would upend those assumptions based on a largely academic dispute. The results, if Thomas ever had five votes for this outcome, could be mass violations of basic human rights.