Individual rights
Thomas has generally written opinions in favor of protections for free speech. He has voted in favor of First Amendment claims in cases involving issues including campaign contributions and commercial speech. A 2002 study by Eugene Volokh found Thomas to be the justice second-most likely to uphold free speech claims (tied with Souter). He has ruled against laws regulating hate speech, as in R.A.V. v. City of St. Paul (1992), United States v. Stevens (2010), and Snyder v. Phelps (2011). Conversely, he has been reluctant to uphold speech deemed intimidating, as in Virginia v. Black (2003).
Thomas's first opinion on free speech was the 1995 case McIntyre v. Ohio Elections Commission, finding that the Founding Era contained the expansive use of anonymous pamphlets and columns. Although he agreed with the result of Justice John Paul Stevens's majority opinion, he disagreed with its methodology and did not join it. With the announcement of McIntyre, the Court also decided Rubin v. Coors Brewing Company, in which Thomas wrote his first majority opinion concerning free speech. In Rubin, Thomas was joined unanimously in ruling unconstitutional a 1935 federal law that prohibited beer labels from disclosing alcohol content. He similarly concurred the next year in 44 Liquormart v. Rhode Island, which struck down a state law that banned the advertisement of prices of alcoholic beverages.
In Colorado Republican Federal Campaign Committee v. FEC (1996), the Supreme Court ruled against the decision of the Federal Election Commission (FEC) to fine the Colorado Republican Federal Campaign Committee for running a political advertisement targeting Senator Tim Wirth. Thomas joined Justice Stephen Breyer's majority opinion in the case, but wrote separately to call against the framework established in the previous campaign finance case of Buckley v Valeo (1976):I believe that contribution limits infringe as directly and as seriously upon freedom of political expression and association as do expenditure limits. The protections of the First Amendment do not depend upon so fine a line as that between spending money to support a candidate or group and giving money to the candidate or group to spend for the same purpose. In principle, people and groups give money to candidates and other groups for the same reason that they spend money in support of those candidates and groups: because they share social, economic, and political beliefs and seek to have those beliefs affect governmental policy.
Thomas has made public his belief that all limits on federal campaign contributions are unconstitutional and should be struck down. In Citizens United v. FEC (2010), he joined the majority but dissented in part, arguing that the Bipartisan Campaign Reform Act's disclaimer and disclosure requirements were unconstitutional. He reinforced his defense of anonymous speech in Doe v. Reed (2010), writing that the First Amendment protects "political association" by means of signing a petition.In Tinker v. Des Moines Independent Community School District (1969), Justice Hugo Black dissented from the Court's opinion invalidating a school's policy to forbid students from wearing armbands in protest of the Vietnam War. Thomas endorsed Black's dissent in Morse v. Frederick (2007), concurring with narrowing the rationale of Tinker and arguing that Tinker be overruled as it was a constitutionally unsupported "sea change in students’ speech rights". In his view, the Constitution does not govern whether public school students may be disciplined for expressive behavior.
In Mahanoy Area School District v. B.L.—in which a high school punished a student for sending a profane message on social media about her school, softball team, and cheer team—Thomas was the lone dissenter, siding with the school. He criticized the majority for relying on "vague considerations" and wrote that historically schools could discipline students in similar situations. In Walker v. Texas Division, Sons of Confederate Veterans, he joined the majority opinion that Texas's decision to deny a request for a Confederate Battle Flag specialty license plate was constitutional.
Thomas agreed with the judgment in McDonald v. Chicago (2010) that the right to keep and bear arms is applicable to state and local governments, but he wrote a separate concurrence finding that an individual's right to bear arms is fundamental as a privilege of American citizenship under the Privileges or Immunities Clause rather than as a fundamental right under the due process clause. The four justices in the plurality opinion specifically rejected incorporation under the privileges or immunities clause, "declin[ing] to disturb" the holding in the Slaughter-House Cases, which, according to the plurality, had held that the clause applied only to federal matters.
Since 2010, Thomas has dissented from denial of certiorari in several Second Amendment cases. He voted to grant certiorari in Friedman v. City of Highland Park (2015), which upheld bans on certain semi-automatic rifles; Jackson v. San Francisco (2014), which upheld trigger lock ordinances similar to those struck down in Heller; Peruta v. San Diego County (2016), which upheld restrictive concealed carry licensing in California; and Silvester v. Becerra (2017), which upheld waiting periods for firearm purchasers who have already passed background checks and already own firearms. He was joined by Scalia in the first two cases, and by Gorsuch in Peruta.
In 2022, Thomas authored the majority opinion in New York State Rifle & Pistol Association, Inc. v. Bruen, guaranteeing the right of law-abiding citizens to carry firearms in public. The case held: "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'" Justice Stephen Breyer, dissenting, wrote, "when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms."
In 2024, Thomas was the sole dissenter in United States v. Rahimi. In Rahimi, the Court was tasked with deciding whether 18 U.S.C. § 922(g)(8) (a federal statute that prohibits people subject to a domestic restraining order from possessing guns during the time they are subject to the order and imposes up to 15 years' imprisonment for each violation) is unconstitutional on its face. The other eight justices found that the statute could be applied constitutionally, but Thomas argued that the surety, affray, and "going armed" laws the government proffered were not sufficient analogies to §922(g)(8) for many reasons, including that historical surety laws did not actually disarm people but only required them to post a bond that would be forfeited if they breached the peace, and that affray laws targeted violence that occurred in public, not private interpersonal violence within the home.
In cases regarding the Fourth Amendment, which prohibits unreasonable searches and seizures, Thomas often favors police over defendants. For example, his opinion for the Court in Board of Education v. Earls upheld drug testing for students involved in extracurricular activities, and he wrote again for the Court in Samson v. California, permitting random searches on parolees. He dissented in Georgia v. Randolph, which prohibited warrantless searches that one resident approves and the other opposes, arguing that the Court's decision in Coolidge v. New Hampshire controlled the case. In Indianapolis v. Edmond, Thomas described the Court's extant case law as having held that "suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops." He expressed doubt that those cases were decided correctly but concluded that since the litigants in the case at bar had not briefed or argued that the earlier cases be overruled, he believed that the Court should assume their validity and rule accordingly. Thomas was in the majority in Kyllo v. United States, which held that the use of thermal imaging technology to probe a suspect's home without a warrant violated the Fourth Amendment.
In cases involving schools, Thomas has advocated greater respect for the doctrine of in loco parentis, which he defines as "parents delegat[ing] to teachers their authority to discipline and maintain order". His dissent in Safford Unified School District v. Redding illustrates his application of this postulate in the Fourth Amendment context. School officials in the Safford case had a reasonable suspicion that 13-year-old Savana Redding was illegally distributing prescription-only drugs. All the justices concurred that it was therefore reasonable for the school officials to search Redding, and the main issue before the Court was only whether the search went too far by becoming a strip search or the like. All the justices except Thomas concluded that the search violated the Fourth Amendment. The majority required a finding of danger or reason to believe drugs were hidden in a student's underwear in order to justify a strip search. Thomas wrote, "It is a mistake for judges to assume the responsibility for deciding which school rules are important enough to allow for invasive searches and which rules are not" and "reasonable suspicion that Redding was in possession of drugs in violation of these policies, therefore, justified a search extending to any area where small pills could be concealed". He added, "[t]here can be no doubt that a parent would have had the authority to conduct the search."
In Doggett v. United States, the defendant had technically been a fugitive from the time he was indicted in 1980 until his arrest in 1988. The Court held that the delay between indictment and arrest violated Doggett's Sixth Amendment right to a speedy trial, finding that the government had been negligent in pursuing him and that he was unaware of the indictment. Thomas dissented, arguing that the Speedy Trial Clause's purpose was to prevent "'undue and oppressive incarceration' and the 'anxiety and concern accompanying public accusation'" and that the case implicated neither.
Thomas wrote that the case "presents the question whether, independent of these core concerns, the Speedy Trial Clause protects an accused from two additional harms: (1) prejudice to his ability to defend himself caused by the passage of time; and (2) disruption of his life years after the alleged commission of his crime". He dissented from the court's decision to, as he saw it, answer the former in the affirmative. He wrote that dismissing the conviction "invites the Nation's judges to indulge in ad hoc and result-driven second guessing of the government's investigatory efforts. Our Constitution neither contemplates nor tolerates such a role".
In Garza v. Idaho, Thomas and Gorsuch, in dissent, suggested that Gideon v. Wainwright (1963), which required that indigent criminal defendants be provided counsel, was wrongly decided and should be overruled.
Thomas was among the dissenters in Atkins v. Virginia and Roper v. Simmons, which held that the Eighth Amendment prohibits the application of the death penalty to certain classes of persons. In Kansas v. Marsh, his majority opinion indicated a belief that the Constitution affords states broad procedural latitude in imposing the death penalty, provided they remain within the limits of Furman v. Georgia and Gregg v. Georgia, the 1976 case in which the Court reversed its 1972 ban on death sentences if states followed procedural guidelines.
In Hudson v. McMillian, a prisoner had been beaten by respondent prison guards, sustaining a cracked lip, broken dental plate, loosened teeth, cuts, and bruises. The Court held that "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury." Dissenting, Thomas wrote, "a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not 'cruel and unusual punishment'. In concluding to the contrary, the Court today goes far beyond our precedents."
Thomas's vote—in one of his first cases after joining the Court—was an early example of his willingness to be a sole dissenter (Scalia later joined the opinion). His opinion was criticized by the seven-member majority, which wrote that, by comparing physical assault to other prison conditions such as poor prison food, it ignored "the concepts of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment".
According to historian David Garrow, Thomas's dissent in Hudson was a "classic call for federal judicial restraint, reminiscent of views that were held by Felix Frankfurter and John M. Harlan II a generation earlier, but editorial criticism rained down on him". Thomas later responded to the accusation "that I supported the beating of prisoners in that case. Well, one must either be illiterate or fraught with malice to reach that conclusion ... no honest reading can reach such a conclusion."
In United States v. Bajakajian, Thomas joined with the Court's liberal justices to write the majority opinion declaring a fine unconstitutional under the Eighth Amendment. The fine was for failing to declare more than $300,000 in a suitcase on an international flight. Under a federal statute, 18 U.S.C. § 982(a)(1), the passenger would have had to forfeit the entire amount. Thomas noted that the case required a distinction to be made between civil forfeiture and a fine exacted with the intention of punishing the respondent. He found that the forfeiture in this case was clearly intended as a punishment at least in part, was "grossly disproportional" and violated the Excessive Fines Clause.
Thomas has written that the "Cruel and Unusual Punishment" clause "contains no proportionality principle", meaning that the question whether a sentence should be rejected as "cruel and unusual" depends only on the sentence itself, not on what crime is being punished. He concurred with the Court's decision to reject a request for review from a petitioner who had been sentenced to 25 years to life in prison under California's "Three-Strikes" law for stealing golf clubs because the combined value of the clubs made the theft a felony and he had two previous felonies in his criminal record.
Thomas believes the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as race-based affirmative action or preferential treatment. In Adarand Constructors v. Peña, he wrote, "there is a 'moral [and] constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. That [affirmative action] programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race."
In Gratz v. Bollinger, Thomas wrote, "a State's use of racial discrimination in higher education admissions is categorically prohibited by the Equal Protection Clause." In Parents Involved in Community Schools v. Seattle School District No. 1, Thomas joined the opinion of Chief Justice Roberts, who wrote that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Concurring, Thomas wrote, "if our history has taught us anything, it has taught us to beware of elites bearing racial theories", and charged that the dissent carried "similarities" to the arguments of the segregationist litigants in Brown v. Board of Education.
Thomas joined the majority in Students for Fair Admissions v. Harvard, which struck down affirmative action in college admissions. He filed a concurring opinion, which he read from the bench, a rare practice for Supreme Court justices.
Thomas has contended that the Constitution does not address abortion. In Planned Parenthood v. Casey (1992), the Court reaffirmed Roe v. Wade. Thomas and Justice Byron White joined the dissenting opinions of Rehnquist and Scalia: Rehnquist wrote, "[w]e believe Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases" and Scalia wrote that the right to obtain an abortion is not "a liberty protected by the Constitution of the United States".
In Stenberg v. Carhart (2000), the Court struck down a state ban on partial-birth abortion, concluding that it failed Casey's "undue burden" test. Thomas dissented, writing, "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so." He went on to criticize the reasoning of the Casey and Stenberg majorities: "The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States—a hostility that Casey purported to reject."
In Gonzales v. Carhart (2007), the Court rejected a facial challenge to a federal ban on partial-birth abortion. Concurring, Thomas asserted that the court's abortion jurisprudence had no basis in the Constitution but that the court had accurately applied that jurisprudence in rejecting the challenge. He added that the Court was not deciding the question of whether Congress had the power to outlaw partial-birth abortions: "[W]hether the Act constitutes a permissible exercise of Congress's power under the Commerce Clause is not before the Court [in this case] ... the parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it."
In December 2018, Thomas dissented when the Court voted not to hear cases brought by Louisiana and Kansas to deny Medicaid funding to Planned Parenthood. Alito and Gorsuch joined Thomas's dissent, arguing that the Court was "abdicating its judicial duty".
In February 2019, Thomas joined three of the Court's other conservative justices in voting to reject a stay to temporarily block a law restricting abortion in Louisiana. The law that the court temporarily stayed, in a 5–4 decision, would have required that doctors performing abortions have admitting privileges in a hospital.
In Box v. Planned Parenthood of Indiana and Kentucky, Inc. (2019), a per curiam decision upholding the provision of Indiana's abortion restriction regarding fetal remains disposal on rational basis scrutiny and upholding the lower court rulings striking down the provision banning race, sex, and disability, Thomas wrote a concurring opinion comparing abortion and birth control to eugenics, which was practiced in the U.S. in the early 20th century and by the Nazi government in Germany in the 1930s and 1940s, and comparing Box to Buck v. Bell (1927), which upheld a forced sterilization law regarding people with mental disabilities. In his opinion, Thomas quoted Margaret Sanger's support for contraception as a form of personal reproductive control that she considered superior to "the horrors of abortion and infanticide" (Sanger's words).
Thomas's opinion referred several times to historian/journalist Adam Cohen's book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck; shortly afterward, Cohen published a sharply worded criticism saying that Thomas had misinterpreted his book and misunderstood the history of the eugenics movement. In Box, only Thomas, Sonia Sotomayor, and Ginsburg publicly registered their votes. Ginsburg and Sotomayor concurred in part and dissented in part, saying they would have upheld the lower court decision striking down the race, sex, and disability ban as well as the lower court decision striking down the fetal remains disposal provision.
In a concurring opinion in Dobbs v. Jackson Women's Health Organization (2022), Thomas wrote that "any substantive due process decision is 'demonstrably erroneous'", and argued that the Supreme Court should go beyond Roe vs. Wade and reconsider other substantive due process precedents, including those established in Griswold v. Connecticut (1965), Lawrence v. Texas (2003) and Obergefell v. Hodges (2015). The overturning of these previous decisions would enable states to limit access to contraception, criminalize sodomy, and criminalize same-sex marriage, respectively.
In Romer v. Evans (1996), Thomas joined Scalia's dissenting opinion arguing that Amendment Two to the Colorado State Constitution did not violate the Equal Protection Clause. The Colorado amendment forbade any judicial, legislative, or executive action designed to protect persons from discrimination based on "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships".
In Lawrence v. Texas (2003), Thomas issued a one-page dissent in which he called the Texas statute prohibiting sodomy "uncommonly silly", a phrase originally used by Justice Potter Stewart. He then said that if he were a member of the Texas legislature he would vote to repeal the law, as it was not a worthwhile use of "law enforcement resources" to police private sexual behavior. But Thomas opined that the Constitution does not contain a right to privacy and therefore did not vote to strike the statute down. He saw the issue as a matter for states to decide for themselves.
In Bostock v. Clayton County, Georgia (2020), Thomas joined Alito and Kavanaugh in dissenting from the decision that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation or gender identity. (Alito wrote a dissent that Thomas joined, and Kavanaugh dissented separately.) The 6–3 ruling's majority consisted of two Republican-appointed justices, Roberts and Gorsuch, along with four Democratic-appointed justices: Ginsburg, Breyer, Sotomayor, and Kagan.
In October 2020, Thomas joined the other justices in denying an appeal from Kim Davis, a county clerk who refused to give marriage licenses to same-sex couples, but wrote a separate opinion reiterating his dissent from Obergefell v. Hodges and expressing his belief that it was wrongly decided. In July 2021, he was one of three justices, with Gorsuch and Alito, who voted to hear an appeal from a Washington florist who had refused service to a same-sex couple based on her religious beliefs against same-sex marriage. In November 2021, Thomas dissented from the majority of justices in a 6–3 vote to reject an appeal from Mercy San Juan Medical Center, a hospital affiliated with the Roman Catholic Church, which had sought to deny a hysterectomy to a transgender patient on religious grounds. Alito and Gorsuch also dissented, and the vote to reject the appeal left in place a lower court ruling in the patient's favor.
In United States v. Skrmetti (2025), Thomas and five of the Court's other conservative justices voted to uphold Tennessee's law prohibiting puberty blockers and hormone therapy for the treatment of gender dysphoria in minors, saying it did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
