Two judicial opinions written by Supreme Court Justice Clarence Thomas, one from 2003 and one from 2022, illustrate the point.

In 2003, the Supreme Court in Lawrence v. Texas struck down a Texas law criminalizing same-sex sexual intimacy, on the ground that it violated the right to liberty protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The vote was 6-3. Justice Antonin Scalia wrote the principal dissent, which Chief Justice William Rehnquist and Justice Thomas joined. But Justice Thomas also issued a two-paragraph dissent of his own, to make a specific point not found in the Scalia dissent.

Borrowing a phrase from a similar opinion by Justice Potter Stewart in the 1965 case Griswold v. Connecticut (about which more below), Justice Thomas explained that he was writing separately “to note that the law before the Court today ‘is . . . uncommonly silly.’” “If I were a member of the Texas Legislature,” he continued, “I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”

Despite the unwisdom of the Texas law, however, Justice Thomas did not think it violated the Constitution. Therefore, he insisted, “as a member of this Court I am not empowered to help petitioners and others similarly situated.” Thomas was at pains to note his disagreement with this “uncommonly silly,” “unworthy” law, and he even expressed a measure of empathy for those subjected to the threat of criminal punishment because of their sexual orientation. The best thing for all concerned, he seemed to suggest, would be for state legislatures to take these laws off the books⎯though the Court could not make them do it.