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Justice Thomas has set two bad leftist legal principles on a collision course.

By John Zmirak, a Sr. Editor, The Stream, May 29, 2019

John ZmirakJustice Clarence Thomas made history this week. He used a routine Supreme Court decision not to review an abortion law to force us to face the truth. An ugly truth, which our elites don’t want to face. A stark truth, attested by documents and facts. An inconvenient truth, which belongs in the Memory Hole.

Margaret Sanger was a violent, passionate racist. Her whole crusade for birth control was fueled by racist contempt. That’s how it succeeded. That same sick passion drove her successors at Planned Parenthood in their fight for legal abortion.

Oh yes, and one of the reasons a white majority on the Supreme Court decided to legalize abortion was eugenic panic. Justice Ruth Bader Ginsburg admitted that, in a lucid moment:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.

A Clinic in Every Ghetto

Abortion now kills black Americans at a much higher rate than white. More black kids get aborted than born in New York City, which proudly named a Square after Margaret Sanger, on the site of her old headquarters. Sanger called non-whites, and whites who weren’t from northern Europe, and others she considered inferior, “human weeds.” And what do we do with weeds, boys and girls?

We kill them.

Now on the Public Record

In a passionate, detailed legal opinion studded with shocking quotes and appalling facts, Justice Thomas burned these facts forever into America’s public record. No longer do you have to look on lurid or angry pro-life websites to find this documentation. It’s now on Westlaw, and part of America’s public legal history.

We should all be glad of that. It’s not surprising that Thomas’s opinion outraged Justice Ginsburg. It ought to shame her. If she had a fully operational conscience.

Thomas’s opinion should wake up non-white Americans to the crass hypocrisy of their so-called “allies.” Of people who agonize about “cultural appropriation” on Cinco de Mayo, but smile when another abortion clinic opens its doors in the barrio. Of elites that claim to hate “white privilege,” but venerate Margaret Sanger, an old friend to Nazis and other vicious race cranks. A speaker at Ku Klux Klan rallies, who never repented her scorn for the poor, the weak, the defenseless.

Crashing Two Bad Trains

Thomas also ventured a bold legal strategy. It’s risky one, too. It would surprise me, in fact, if he even means it sincerely. Instead, I think we see him here being strategic, mischievous, even a bit Machiavellian in the most worthy of causes. Justice Thomas asked in his opinion whether legal abortion can really be constitutional, since it has racist origins and exerts a disparate impact on non-white Americans.

Roe pretends that science doesn’t know and can never find out whether unborn children are human. Planned Parenthood v. Casey claims that morality itself is a murky, insoluble muddle, which American “liberty” deals with by shrugging, and asking each citizen to make it up as he goes along.

In asking that, Justice Thomas pulled what we might call a Gomez Addams. Remember how that half-mad, lovable aristocrat used to rev up his model trains to full steam, then crash them into each other?

Well, that’s what the brilliant and principled Justice Thomas just set up with this opinion. (Go read it.) He has taken two leftist perversions of our Constitution, and set them up on a collision course.

Blind, Stupid Obscurantism

The first is the blind obscurantism of Roe v. Wade and Planned Parenthood v. Casey. Roe pretends that science doesn’t know and can never find out whether unborn children are human. Planned Parenthood claims that morality itself is a murky, insoluble muddle, which American “liberty” deals with by shrugging, and asking each citizen to make it up as he goes along.

The Nonsense of “Disparate Impact”

The second perversion is the Supreme Court’s decades-long embrace of “disparate impact” as proof of discrimination. As the law stands, if a employer, or landlord, or other owner of a “public accommodation” imposes a standard that’s objectively neutral, courts can order him to give it up if its outcome turns out to disadvantage members of “protected classes.” So if an accountancy firm had an IQ test where white people scored better … it’s racist and illegal. Likewise physical tests for firefighters or soldiers that disadvantage women. This legal principle, too, is bankrupt. It makes nonsense of freedom of contract and association, penalizing people for actions where no discriminatory intent was even present. This is identity politics, masquerading as constitutional law.

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Thanks to “disparate impact,” an opponent of Roe wouldn’t even need to prove that the justices who decided it intended to disproportionately cull the crop of black kids. Just the fact that the decision had that impact would render it … what’s the au courant word? Ah yes, “problematic.”

Both the obscurantism of Roe and the collectivism of “disparate impact” violate the natural law, which Thomas has always held as the foundation of American liberty. Both deserve to explode. Justice Thomas has connected the tracks and set them up to smash together at top speed. I like to think of him smiling, like Gomez, holding the detonator.

John Zmirak is a Senior Editor at The Stream, and author of numerous books, including The Politically Incorrect Guide to Immigration.


He has been Press Secretary to pro-life Louisiana Governor Mike Foster, and a reporter and editor at Success magazine and Investor’s Business Daily, among other publications. His essays, poems, and other works have appeared in First Things, The Weekly Standard, The Atlanta Journal-Constitution, USA Today, FrontPage Magazine, The American Conservative, The South Carolina Review, Modern Age, The Intercollegiate Review, Commonweal, and The National Catholic Register, among other venues. He has contributed to American Conservatism: An Encyclopedia and The Encyclopedia of Catholic Social Thought. From 2000-2004 he served as Senior Editor of Faith & Family magazine and a reporter at The National Catholic Register. During 2012 he was editor of Crisis.

He is author, co-author, or editor of twelve books, including Wilhelm Ropke: Swiss Localist, Global Economist, The Grand Inquisitor (graphic novel) and The Race to Save Our Century. He was editor of the Intercollegiate Studies Institute’s guide to higher education, Choosing the Right College and, for ten years, and is also editor of Disorientation: How to Go to College Without Losing Your Mind.