The Most Fearful Part of the Supreme Court’s Planned Parenthood Ruling

Thomas argued that the “narrow, Reconstruction era statute” had “exceeded” its original designs, which he said were limited to enforcing the recently ratified Fourteenth Amendment. He argued that the “and laws” portion, which was added in a 1874 revision, had no legal weight because it was not intended to alter the original provision’s purpose. Until Monroe, Thomas argued, Section 1983 cases were scarce and apparently only meant to enforce the rights protected by Reconstruction-era federal laws.

“Post-Monroe, courts have faced a ‘deluge’ of Section 1983 filings numbering in the tens of thousands each year,” he complained, although it is not clear why that would be relevant. “The ‘scant resemblance’ between Section 1983 today and Section 1983 as it was traditionally understood creates good reason to doubt our modern understanding,” he argued.

Though this is the most forceful argument against Section 1983 that Thomas has made, he noted that he had hinted at it in recent years. In a footnote in Thursday’s opinion, for example, he pointed out that he suggested in 2020 that the “under color of” language in the provision should be read to only cover state laws and ordinances, not state officials acting in their official capacity as it is currently understood. That would obliterate a wide range of Section 1983 claims in general and, in particular, nearly all of the ones related to police misconduct.

Thomas also suggested that Section 1983 should be narrowed to laws “enacted under Congress’ Reconstruction Amendments enforcement powers” and, even more boldly, questioned whether the provision “even supplies a freestanding cause of action,” pointing to a dissent he wrote earlier this year in an unemployment-benefits case where he opined that he “doubt[ed] that petitioners have a true due process interest in ‘mere government benefits and entitlements.’”