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On Behalf of | Jul 16, 2022 | Firm News

Poster advertising a special issue of a Nazi newspaper about “race defilement” and the Nuremberg Laws,” US Holocaust Memorial Museum.

The book Skeleton of Justice, was written in 1941 by Roper and Leiser.  Edith Roper was one of the few correspondents to enter a Nazi courtroom so she had a clear insight what was happening in the courts.  As we know today, Nazi courts were a sham as nothing more than a political weapon against Nazi opponents.  Skeleton of Justice makes it clear that the criminal system is not immune from becoming a servant of political forces.​

Nazi statutes were full of legal rules for oppression.  This was a part of Reichsgesetzblatt, (“RGBI”) the official edition of statutes.  For instance, the notorious anti-semitic laws in the administration of Nazi justice, Roper and Leiser, p. 134 ff., 141 ff, was the so-called “Law for the protection of German blood and honor” of Sept. 15, 1935.  RGB1 1935 I 1146, deserves a prominent place.  This law created the new criminal offense of race defilement” (Rassenschande). It prohibited all marriages between Jews and Aryans under penalty of imprisonment with hard labor up to fifteen years. The same penalty was provided for extramarital sexual intercourse between members of these two racial groups. Jews were not permitted to employ Aryan female domestic help under 45 years of age, this offense being punishable with imprisonment up to one year and with fines. The same law also punished German Jews for showing the Swastika flag, probably an infrequent offense. Another decree of the same day deprived all German Jews of German citizenship.  RGB1 1935 I 1146.  The connection between the two decrees is obvious; both were manifestations of racial persecution in the field of law.

In his concurring opinion in Dobbs v. Jackson Women’s Health, Justice Clarence Thomas attacked substantive due process, a legal idea that says certain rights can and should be protected by courts, even if not specifically enumerated in the Constitution. The idea of substantive due process allowed abortion to remain protected for nearly 50 years despite not being mentioned in the Constitution or explicitly legalized in a federal statute.  “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion, later saying that “we have a duty to ‘correct the error’ established in those precedents.”  These cases, like Roe, cases represent fundamental parts of American life that many take for granted. Griswold v. Connecticut established that adults have the right to use contraceptives, Lawrence v. Texas established that it is illegal to punish people for homosexual activity, and Obergefell v. Hodges legalized same-sex marriage on a national level.

Unmentioned by Thomas was Loving v Virginia which found that substantive due process protected the right of different races to marry.  Thomas’ decision to exclude a case that directly benefits him (Thomas is married to Ginni Thomas, a white woman) demonstrates Thomas is not really concerned about legal process but more in obtaining results that advance his reactionary agenda of original interpretation of the Constituion.

As pointed out by Whoopi Goldberg on the TV show The View: “You better hope that they don’t come for you, Clarence, and say you should not be married to your wife, who happens to be white, because they will move back…..And you better hope that nobody says, you know, well, you’re not in the Constitution. You’re back to being a quarter of a person.”