The U.S. Supreme Court must cease granting so-called rights demanded by some in the 21st Century that are not found in the Constitution, Justice Clarence Thomas said Thursday night.
Speaking to the Federalist Society at a dinner honoring the late Justice Antonin Scalia, Thomas referenced the Supreme Court’s decision last year to legalize same-sex marriage as an example.
“Today it is the view of many that the Supreme Court is the giver of liberties—what an odd conception of governance that We the People are dependent on the third branch of government to grant us our freedom,” Thomas said.
“With such unchecked judicial power, the court day-by-day, case-by-case, is busy designing the Constitution—as Justice Scalia once quipped—instead of interpreting it,” he added.
Thomas said this practice leads to judges adding to the Constitution.
“With such unchecked judicial power, we leave it for the least accountable branch to decide what newly discovered rights should be appended to our Constitution,” Thomas said.
Thomas argued that conservative judges and legal minds must work to make government once again conform to the what the authors of the Constitution intended.
“Whether we in this room tonight ultimately win or lose the effort to reclaim the forms of government that the Framers intended, it is our duty to stand firm in the defense of the Constitutional principles and structure that secure our liberty,” Thomas said.
“Like Justice Scalia, we must do what the Constitution obliges us to do. It is now for us, the living, to be dedicated to the unfinished business for which Justice Scalia gave his last full measure of devotion,” Thomas said, paraphrasing the words of Lincoln’s Gettysburg Address.
Federalist Society President Eugene Meyer noted that last week’s election has changed the world as conservative legal scholars know it.
“On November 8, Hurricane Trump hit. The future can be difficult to predict,” he said.
Leonard Leo, the society’s executive vice president, met with Trump this week to discuss the transition and potential Supreme Court picks. He told the group that change means opportunity.
“Any time there’s a major shift in the power of government, it’s an enormous opportunity for what is probably the collection of the smartest, most talented and most publicly minded lawyers in the country to roll up their sleeves and help advance the cause of constitutional government,” he said.
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