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Texas This Week: The political agenda of the U.S. Supreme Court's conservative justices

Richard Albert, professor and director of Constitutional Studies at UT Austin, weighs in on the cases Justice Clarence Thomas wants to "correct."

AUSTIN, Texas — In this week's edition of Texas This Week, Richard Albert, professor and director of Constitutional Studies at the University of Texas at Austin, joins Ashley Goudeau to discuss the impacts of the U.S. Supreme Court's decision to overturn Roe v. Wade and what cases some on the court want to take up next.

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Richard Albert discusses U.S. Supreme Court's decision to overturn Roe v. Wade

Many suspect the U.S. Supreme Court's decision to overturn Roe v. Wade is just the beginning for the conservative majority of justices who are seemingly willing to roll back precedents on privacy for Americans. That concern was born out of the concurring opinion written by Justice Clarence Thomas, which cites three specific cases the justice believes should be overturned.

Richard Albert, professor and director of Constitutional Studies at the University of Texas at Austin, joined KVUE to talk about those cases and the impact of the court's decision

Ashley Goudeau: First talk to us overall about the implications of sending abortion rights back to the states, which, of course, is what overturning Roe v. Wade did.  

Richard Albert: "Well, there's a very big misconception about what this case will mean for the states. People think that this will prohibit abortion in many states around the country. It's not quite accurate to say that. What this result will mean is that safe abortions will be prohibited because abortions are going to happen even in Texas after the Legislature prohibits them. And that's bad news. It's very sad. It's a devastation for the country, for women and anyone who believes in fundamental rights and freedoms."

Goudeau: When we talk about those fundamental rights and freedoms, there's also some implication that the justices are at least open to discussing other things, other rights that people have as of right now. Of course, talking about that concurring opinion from Justice Clarence Thomas, let's talk about some of the things that he included, starting with cases that he says perhaps the court should go back and, his word is 'correct,' starting with the use of contraceptives for married couples. Talk to us about that case, that ruling, and, you know, potentially what the court could do there.  

Albert: "This is a case that goes back to Connecticut. That's where the case emerged. And because the right to contraception is not specifically enumerated in the text of the Constitution, Justice Thomas has really declared war on that right, saying, 'Hey, if you don't like the right, as I don't like the right,' he's saying, 'please file a lawsuit and you'll have an ally in me at the court to try to overturn that decision.' And Justice Thomas plans to assemble allies on the court to see if they can reach a majority to overturn that case, just as they did for Roe v. Wade."

Goudeau: If that case is overturned, talk to us about what that would really do, what that would look like for people across the country.  

Albert: "Well, just imagine this would be the state entering the bedrooms of men and women across the country. That's not how a state should be run. The state would be interfering in the most private of all relations, domestic relations between people who love each other. That's not the role of the state, and that's the door, however, that Justice Thomas wants to fling right open by inviting litigation to overturn that case that protects the fundamental right to contraception."

Goudeau: He also talked about same-sex relationships. That was the second of the cases that he talked about. Talk to us about that one.  

Albert: "Well, this is another case that's connected to Texas. Roe v. Wade, of course, began here in the state of Texas. That case too, Lawrence v. Texas, which ruled, correctly, that there is a fundamental right of privacy in sexual relationships between two persons, whether they be of the same sex or not. In his concurring opinion, in the Dobbs case overturning Roe v. Wade, Justice Thomas again encouraged litigation to overturn that right. That would be disastrous for personal relationships between people who love each other in this country. What a disaster that would be."

Goudeau: And then the third case that he mentioned, in terms of perhaps the court overturning, having to do with same-sex marriage.  

Albert: "This is a case that comes out of, I believe it's Massachusetts, in which the court rules that there is a right to marry whomever you wish. And this is a fundamental right that is today protected. But in his concurring opinion, Justice Thomas says, let's take a look at that right too. That, too, should be troubling. This is a trilogy that should inspire fear and I think deep concern for the state of rights in this country. And it's all all comes out of that concurring opinion by Justice Thomas. I'm quite disappointed in him, I have to say."

Goudeau: You know, he's saying that these things are not explicitly listed as being rights in the Constitution. But isn't that really the case for so many of the freedoms that we enjoy in this country?  

Albert: "There are so many rights that you and I enjoy that are not written down in the text of the Constitution. You have the right to vote. It's not written down anywhere in the text of the Constitution. You have a right to raise your kids however you wish to raise them. It's not written down anywhere in the text of the Constitution. And so the challenge here at the court is to prove not only that these rights exist and have existed from time immemorial, but that the Constitution requires that they be respected despite what the conservative majority on the court would have you believe."

Goudeau: Because of Justice Thomas's opinion -- him saying these are the next three things that potentially, you know, I am open to overturning -- do you think this almost gives Congress, though, right now a heads-up? If you want to do something about these things, if you want to codify them, you should probably do that sooner rather than later.  

Albert: "To be honest with you, this is not going to be painting a rosy portrait for you. To be honest, I don't think there is much that can be done to stop this court from repealing these rights that have been won through years and years of hard-fought battles. If the court wants to overturn the right to contraception, if the court wants to roll back the clock to a time when there was sexual discrimination based on orientation, then it will do so. The one solution to all of this, the one power that can still be exercised to stop a court gone rogue, is the power of constitutional amendment. Americans have the power to amend their Constitution to overturn a Supreme Court opinion. Americans have done this on five occasions in American history. Why not a sixth?"

The Last Word

This week, Ashley weighs in on a report from The Texas Tribune about a group of educators wanting to teach second-graders about "journeys to America," including slavery with the term "involuntary relocation."


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