Throughout his long tenure on the U.S. Supreme Court, Justice Clarence Thomas often has used his dissenting and concurring opinions to lob legal grenades at doctrines and prior decisions that he believes should be reconsidered or overturned. Last week, he targeted a major tool for challenging violations of our civil rights. And this time, he got vigorous pushback from his colleague, Justice Ketanji Brown Jackson.
The tool is known as Section 1983 of Title 42 of the U.S. Code. It originally was Section 1 of the Civil Rights Act of 1871, better known as the Ku Klux Klan Act, one of the most important civil rights laws in U.S. history. That act was intended to protect Black Americans from white supremacist violence in the post-Civil War South.
Section 1983 allows an individual to sue a state or local government official who has violated his or her constitutional rights. A violation could involve freedom of speech, freedom of religion, due process, and more. It’s not enough to allege a violation of the Constitution or federal law. The claim must allege a violation of a clearly established right.
A Section 1983 claim was at the heart of the 6-3 decision in Medina v. Planned Parenthood of South Atlantic. Federal Medicaid law imposes a condition on states receiving funds under the law that Medicaid recipients be able to choose their own health care providers as long as those providers are qualified to perform the service or services. The provision is known as the “free-choice-of-provider” provision, designed to prevent states from steering Medicaid recipients to the states’ preferred healthcare providers.
Julie Edwards, a Medicaid recipient, had been unable to find a provider to care for her diabetes and heightened risks if she should become pregnant. But she found such a provider at Planned Parenthood and wanted to have those doctors attend to her diabetes and gynecological needs.
But in 2018, South Carolina’s governor, via an executive order, disqualified Planned Parenthood as a Medicaid provider. The governor said at the time that even though Planned Parenthood was not using Medicaid funds to perform abortions (as prohibited by federal law), its clinics’ other services subsidized abortions. The order would have forced two Planned Parenthood clinics to close.
Edwards sued state health officials under Section 1983. She argued that terminating Planned Parenthood from the Medicaid program violated her rights under the free-choice-of-provider provision to obtain care from doctors of her choice. The U.S. Court of Appeals for the Fourth Circuit agreed with Edwards. A 6-3 conservative majority of the Supreme Court disagreed.
“Section 1983 permits private plaintiffs to sue for violations of federal spending-power statutes only in ‘atypical’ situations,’ where the provision in question ‘clear[ly]’ and ‘unambiguous[ly]’ confers an individual ‘right,’” wrote Justice Neil Gorsuch for the majority, citing prior Section 1983 decisions. Medicaid’s free-choice-of-provider provision “is not such a statute,” he concluded.
Justice Thomas used his 13-page concurring opinion to focus on the Court’s jurisprudence on Section 1983, which, he wrote, bears “little resemblance to the statute as originally understood.” Section 1983, he argued, originated as a narrow Reconstruction-era statute but has now exceeded its original limits.
In a series of decisions after 1961, the Supreme Court continued to broaden the scope of Section 1983, according to Thomas, until today, “The consequence is that litigants can now invoke §1983 to challenge myriad ‘state actions that have little or nothing to do with’ civil rights.”
Thomas, an originalist, noted his belief that a statute’s meaning turns on what its words “conveyed to reasonable people at the time they were written.” He added, “Given the degree to which the judicial conception of ‘rights’ evolved over the 20th century, I doubt that §1983, as originally understood, protects the full range of ‘rights’ that courts now construe it to cover.”
There is much more to Thomas’ analysis. But his bottom line in that concurring opinion, he wrote, is “given the remarkable gap between the original understanding of §1983 and its current role, a more fundamental re-examination of our §1983 jurisprudence is in order.”
Justice Jackson, who also claims to be an originalist, devotes most of her dissenting opinion to countering the majority opinion’s analysis but she singles out Thomas’ concurring opinion about re-examining Section 1983 towards the end of her opinion. And she counters his originalist view of history just as she did in their warring opinions in the Supreme Court’s decision rejecting the use of race in university admissions policies.
“Like other §1983 skeptics, Justice Thomas seems to view the paucity of early §1983 lawsuits as evidence that the statute was originally understood to do very little,” Jackson wrote. “But other explanations come to mind, too—such as the fact that filing civil rights lawsuits during the Jim Crow era could be quite perilous, especially for the people whom the statute was originally meant to benefit. Many would-be plaintiffs had reason to fear that filing a lawsuit would lead to physical or economic reprisals. Add to that the difficulty of finding a lawyer, prevailing before often-hostile juries, and (if successful) enforcing a judgment, and it is not hard to imagine that the dearth of §1983 lawsuits in the wake of Reconstruction might have myriad alternative explanations.”
Thomas, she added, suggests that the word “rights” as used in Section 1983 was originally understood more narrowly than it is used today. “But his support for that claim is limited to a handful of late-19th-century cases, mostly about government pensions and employment. If a statute’s meaning ‘turns on what its words conveyed to reasonable people at the time they were written,’ a broader—and more inclusive—survey of historical sources would seem to be in order.”
Jackson argues that the Planned Parenthood decision continues a weakening by the Justices of “one of the country’s great civil rights laws.” A majority of justices may be far from the time when they want to re-examine wholesale Section 1983. Such an endeavor could result in a major blow to individuals’ enforcement of many civil rights. But Thomas’ legal grenades can be influential.
Last week, a 6-3 conservative majority also issued a decision restricting the ability of federal district courts to issue nationwide or universal injunctions (Trump v. Casa). The majority’s language and analysis was reminiscent of a Thomas concurring opinion in the Muslim travel ban case, Trump v. Hawaii in 2018.
Thomas wrote: “I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts… In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty bound to adjudicate their authority to do so.”
And so it did.
Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.
