Do we think Nadler is playing dumb here because he knows his audience doesn’t know better or do we think he’s actually this dumb?

Rep. Nadler said Justice Thomas didn't mention interracial marriage in his Dobbs concurrence b/c he's married to a white woman.

"He didn't mention Loving for some reason…maybe the fact that he's intermarried and so is Senator McConnell, maybe that had something to do with it." pic.twitter.com/wvSFyQOqw8

— Washington Free Beacon (@FreeBeacon) July 19, 2022

That’s a nice example of what we’ll call “liberal privilege.” If a Republican congressman went out of his way to note that a judge and a congressional leader from the other party are involved in interracial marriages, there’s no context that would spare him from accusations of “dog-whistling.”

I don’t think Nadler intends to be racist, though. He’s simply accusing Thomas of being a hack who’d let his own personal interests and the personal interests of top conservatives determine something as profound as how he views the bounds of substantive due process under the Fourteenth Amendment.

Here’s the passage from Thomas’s concurrence in Dobbs that has Nadler bothered on a day when House Dems are voting on a bill that would essentially codify legal gay marriage.

Note that Thomas doesn’t rule out there the possibility that the Court would reaffirm the holdings in its landmark precedents on contraception and gay rights even though it’s a safe bet that he’d vote no in all three cases. He’s raising a doctrinal objection to “substantive due process” first and foremost. It *is* weird, frankly, that the Court has derived substantive rights from a procedural measure like the Due Process Clause. If we’re going to start divining unwritten rights from the penumbras of the Constitution or whatever, says Thomas, we should base those rights more sensibly on the Privileges or Immunities Clause (or the Ninth Amendment) instead.

But lay that aside. Nadler’s right that the Loving case isn’t mentioned in Thomas’s hit list of watershed rulings on substantive due process. Why is that? Is it because he’s a two-bit judge who’s conspicuously carving out an exception for his own marriage from his originalist war on liberal precedent?

No. It’s because Loving isn’t about substantive due process. Not chiefly, at least. From Earl Warren’s majority opinion:

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated ‘(d)istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny,’ Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they ‘cannot conceive of a valid legislative purpose * * * which makes the color of a person’s skin the test of whether his conduct is a criminal offense.’ McLaughlin v. Florida, supra, 379 U.S. at 198, 85 S.Ct. at 292, (Stewart, J., joined by Douglas, J., concurring).

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

It’s an equal protection case, and not just an equal protection case but one that bears on the core concern of the Equal Protection Clause, racial discrimination. Warren does go on to say that freedom to marry is also a substantive due process right that can’t be abridged by the states, but marriage is a right so basic that even Thomas’s narrow originalist view of unwritten rights protected by the Constitution would assuredly include it. Remember, Alito’s majority opinion in Dobbs never said there’s no such thing as unwritten rights. It said that, to enjoy constitutional protection, an unwritten right needs to be deeply rooted in the country’s history and tradition and an essential part of “ordered liberty.” Marriage obviously qualifies; in Loving, in fact, Warren described it as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

If you laid the question squarely before Clarence Thomas whether marriage of any kind is protected by the Constitution, the most discouraging answer you might plausibly get is “Of course it is. But it’s the Privileges or Immunities Clause that protects it, not the Due Process Clause.”

That’s why he didn’t mention it in his Dobbs concurrence, not because he’s a hack who molds his constitutional jurisprudence for his own benefit. And Nadler probably knows that. He’s not stupid, he just thinks his audience is.