Substantive Due Process After Mirabelli

Despite all of the attention that Dobbs has received, I think the decision is still poorly understood. Consider the divide between the majority and dissent in Mirabelli v. Bonta. In this case, parents raised a substantive due process claim that they had the right to direct the upbringing and medical care of their children. And the Court relied on substantive due process to grant relief. But as Justice Kagan pointed out in dissent, the per curiam opinion gave SDP the Voldemort treatment:

But the very phrasing the Court uses betrays the delicateness of the operation: Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine—it is, again, substantive due process—that provides the right’s only basis.

Kagan writes further that the Court has, of late, expressed some skepticism of substantive due process:

Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today’s majority. The Due Process Clause, needless to say, does not expressly grant parental rights of any kind. The relevant text bars a State only from depriving a person of “liberty” “without due process of law.” Members of the majority often have expressed skepticism—sometimes outright hostility—to understanding the “capacious” term “liberty” to enshrine specific rights. Dobbs v. Jackson Women’s Health Organization, 597 U. S. 215, 239 (2022).

Justice Kagan quotes several pre-Dobbs opinions that attack the Warren Court’s conception of SDP, including  Justice Thomas in McDonald and Obergefell, and Justice Gorsuch in Sessions. Kagan also quotes from Justice Kavanaugh’s Dobbs concurrence, which stated that the “Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution.” Here, Kagan feels “whiplash,” as the Court in Mirabelli accepted an SDP right of parents to direct the upbringing of their child, even as Dobbs “repudiat[ed] a woman’s right to make important decisions about her own health.”

Let me alleviate Justice Kagan’s confusion. All five members of the Dobbs majority accepted the version of substantive due process articulated in Glucksberg: the Due Process Clause protects those rights that are deeply rooted in text, history, and tradition. The right of parents to direct the upbringing of their children falls squarely in this tradition. The purported right of a woman to end a pregnancy does not. Glucksberg expressly repudiated the notion that you can define abortion at the broad level of generality of a woman “make important decisions about her own health.” Stated at the right level of generality, the Constitution protects the right to parents to safeguard their offspring, not the right of parents to terminate their offspring. This issue isn’t very difficult.

Justice Barrett summarizes the state of the doctrine in her concurrence, which was joined by the Chief Justice and Justice Kavanaugh. And Chief Justice Roberts, by joining Justice Barrett’s concurrence, has now embraced the methodological approach from Dobbs.

As the dissent observes, substantive due process is a controversial doctrine. Judges typically interpret express constitutional rights, such as the freedom of speech or religion. But substantive due process asks us to find unexpressed rights in a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property. U. S. Const., Amdt. 14, §1. When rights are unstated, how do judges know what they are? The obvious risk is that judges will use their own values as a guide, thereby jeopardizing the People’s right to self-governance. To mitigate this risk, the Court has crafted a demanding test for recognizing unexpressed rights: They must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). Relevant here, the doctrine of substantive due process has long embraced a parent’s right to raise her child, which includes the right to participate in significant decisions about her child’s mental health. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Parham v. J. R., 442 U. S. 584 (1979). The parent-applicants are likely to succeed on the merits under a straightforward application of these cases.

Pierce and Meyer would squarely fit under the Glucksberg test. Or better, Glucksberg derives from cases like Pierce and Meyer. There is absolutely nothing inconsistent about the Court rejecting Roe and Casey, while reaffirming Pierce v. Society of Sisters and Meyer v. Nebraska. The right to abortion was invented by judges of wisdom. The right of parents comes from time immemorial.

Consider Justice McReynold’s list of rights from Meyer:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.

If a right is listed in this passage, it would fit under Glucksberg

Next, Justice Kagan takes an unfair shot at Justice Thomas. Footnote 2 of the dissent states:

2For that reason, JUSTICE THOMAS has called for overruling “all” of thisCourt’s “substantive due process precedents.” Dobbs, 597 U. S., at 332– 333 (concurring opinion). That invitation presumably extends to the precedents supporting both the District Court’s decision and today’s per curiam. See ante, at 5–6 (citing Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); and Parham v. J. R., 442 U. S. 584 (1979)); App. to Emergency Application 38a–39a.

When I first read this line, I thought it was off. I didn’t recall that Thomas said that “all” of the SDP precedents should be overruled. He has expressly recognized that some of those precedents may be salvageable under the Privileges or Immunities Clause. I went and checked Dobbs, and Thomas made a very different, far more sophisticated point. He wrote:

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Again, Kagan wrote that Justice Thomas has “called for overruling ‘all’ of this Court’s “substantive due process precedents.” But Justice Thomas wrote that the Court “should reconsider all of this Court’s substantive due process precedents.” Do you see the difference between “overrule” and “reconsider”?

And what would that reconsideration look like? As Justice Thomas explained in Ramos v. Louisiana, the Court should consider “whether any of the rights announced in this Court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.” Is the right of parents one such right protected by the Privileges or Immunities Clause? Justice Thomas flagged this in Troxel v. Granville (2000), the term that Justice Jackson clerked for Justice Breyer.

I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.[*]

[*Note: This case also does not involve a challenge based upon the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that Clause.See Saenz v. Roe, 526 U. S. 489, 527-528 (1999) (Thomas, J., dissenting).]

Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest—to say nothing of a compelling one—in second-guessing a fit parent’s decision regarding visitation with third parties. On this basis, I would affirm the judgment below.

So does Justice Thomas want to overrule Pierce and Meyer? If I had to guess, he would locate this right as protected by the Privileges or Immunities Clause. That Thomas did not write an opinion in this emergency docket case may be a factor that he wants to develop this issue at length. Perhaps in a literal sense a precedent might be overruled, should any party make that request, but the same holding would be supported by the correct textual anchor. Justice Barrett reaffirmed that Pierce and Meyer would stand under Glucksberg. There really is no controversy here.

To make the point clearer, when Pierce and Meyer were decided, “substantive due process” wasn’t a thing. That term didn’t come around till much later, largely in an attempt to vilify the Lochner era.

I think Justice Thomas is right that every substantive due process case should be reconsidered. As Justice Alito noted in Dobbs, the stare decisis values of each precedent will vary, so it isn’t clear there is anything close to a majority of the Court willing to jettison the entire line of cases. But any case that fits in the Glucksberg framework, or that could be re-considered as a Privileges or Immunities Clause case, should stand on a firm footing.