THOMAS, J., concurring
“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
But he isn't particularly interested in that, because he is a political hack.
Thankfully, he is at least wrong about Obergefell, which was decided on different, and much firmer, grounds than the right-to-privacy cases. But carrying out the logic from this decision to others does indeed threaten Griswold and Lawrence, and especially Griswold, which was basically the direct precedential precursor to Roe.
Obergefell and Lawrence rested more strongly on Griswold directly (or through other non-Roe cases) than on any innovation from Roe, as I recall.
(Note that Thomas’ explicit attack on “all of this Court’s substantive due process precedents” strikes much more deeply, though, than just the Griswold line of privacy-related cases; the incorporation of the Bill of Rights as applicable against the States is substantive due process, and even the application of even the rational basis test requiring some connection to some legitimate public purpose for any legal distinction, are all part of the substantive due process precedent of the Court. I guess, if this Court wasn’t nakedly partisan and selective in its logic, this could be a hopeful sign for Dems on state gun control, since if there were a serious reconsideration of that precedent the incorporation of the second Amendment – the only Amendment with a purpose clause explicitly stating that it is for the benefit of the states – against the States would be on the weakest ground of any of it.)
More generally griswold was one of the landmark decisions at the core of finding a (non-enumerated) constitutional right to privacy.
>The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.
>For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.
>To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22.
This is actually in important and interesting legal question, because the Court has largely side stepped determining a mechanism for how to identify those rights, and did so in Roe.