I agree with Thomas’ brief dissent in that case. Such a law is “uncommonly silly.” Almost nobody wants to invade private bedrooms to search for evidence of sodomy.
However, sodomy is not one of those individual rights guaranteed by the Magna Carta, English common law, or the Constitution. I personally believe that in modern society, it should be protected between consenting adults. I would not have voted for the Texas law, and I would have voted to repeal it. I would vote to ratify any constitutional amendment that no state may criminalize private, adult, consensual, non-commercial sexual conduct. But judges should not make decisions based on what should be. They should decide based upon what the law is.
In my opinion, that is a crucial, crucial distinction that preserves representative democracy against rule from nine lawyers. The majority of those nine lawyers can flip and decide that you don’t have certain rights. Judicial restraint is important even if they claim to be doing good things. Everyone has good intentions, and the fate of basic rights should not be contingent upon the passing moods of the day.
The power in the hands of nine unelected lawyers is dangerous as it can thwart the will of 320 million voters. This is not what our framers intended, nor should it be the desire of anyone committed to a rule of law and not men.