Part X: Modern Substantive Due Process

An Introduction To Constitutional Law Video Library: Griswold v. Connecticut (1965), Roe v. Wade (1973), Planned Parenthood v. Casey (1992), Whole Woman's Health v. Hellerstedt (2016), Lawrence v. Texas (2003), U.S. v. Windsor (2013), Obergefell v. Hodges (2015), Dobbs v. Jackson Women’s Health Organization (2022)

⚖️ Griswold v. Connecticut (1965)

⚖️ Roe v. Wade (1973)

⚖️ Planned Parenthood v. Casey (1992)

⚖️ Whole Woman's Health v. Hellerstedt (2016)

⚖️ Lawrence v. Texas (2003)

⚖️ U.S. v. Windsor (2013)

⚖️ Obergefell v. Hodges (2015)

⚖️ Dobbs v. Jackson Women's Health Organization (2022)

Comments

[ReaderY]

The Roe/Dobbs pair is on the list. Why not Bowers v. Hardwick amd a Dobbs/Lawrence pair?

Dobbs didn’t cite Bowers. But it applied the Bowers standard for determining whether a right is fundamental. It avoided citing the case somewhat surreptitiously, by citing a later case (Glucksberg) that had lifted the standard right from Bowers and had cited it when it did so.

Since Lawrence explicitly repudiated the Bowers standard to reach its result, and Dobbs explicitly reinstated it (despite distinguishing Lawrence) to reach its, Bowers would appear to be necessary to understand where “modern substantive due process” jurisprudence might be heading.

[ReaderY]

Whole Woman’s Health v. Hellerstedt, by contrast, seems a comparatively minor case that could easily be deleted. It’s a simple application of Roe and Casey that didn’t break any new ground. It was considered important at the time, of course, but we’re living in a different time now. The framework it was based on has been swept away.

Same with Windsor. It was a transitional case where the Supreme Court effectively punted, leaving the 9th Circuit’s opinion intact without reaching a ruling. So it doesn’t really even say anything. Once you have Obergefell, Windsor is no longer important.

[JoeFromtheBronx]

Same with Windsor. It was a transitional case where the Supreme Court effectively punted, leaving the 9th Circuit’s opinion intact without reaching a ruling. So it doesn’t really even say anything.

The 9th Cir. case — involving Ted Olson (RIP) and David Boies — was Hollingsworth v. Perry.

Windsor from the Second Circuit overruled Section Three of DOMA and its language started a drumbeat of lower court opinions (with a key exception of the Sixth Circuit) quoting it to overturn same-sex marriage bans.

Dobbs didn’t cite Bowers.

FN48 Cited Bowers as an example of a case SCOTUS overruled. I agree it is useful to include it in the series.

[Bob from Ohio]

"Substantive" and "due process" going together is the stupidest SCOTUS doctrine.

Procedure is not substance. SCOTUS is just doing pure policy with a 14A fig leaf.

[David Nieporent]

Prof. Bernstein has explained why this is wrong.

[ConservativeProfessor]

Randy makes a mistake in the Dobbs video. He says that in Casey the court said that the state cannot pass legislation that creates a substantial burden to obtain an abortion after viability. I think he means before viability.

[JoeFromtheBronx]

The opinion of the Court pushed back on the idea it was doing substantive due process in Griswold v. Connecticut but later opinions rested on SDP to promote its ends.

Justice Harlan's concurrence (more expansively expressed in his dissent in Poe v. Ullman) became authoritative. See, e.g., Planned Parenthood v. Casey.

The opinions show the overlap between enumerated rights, substantive liberty analysis, and equal protection. Obergefell, e.g., was both a right to marry case and discussed how equal protection principles were involved.

Substantive due process has a long history, and various conservative and libertarian legal theorists (some posting here) have deep dived the question.

[JoeFromtheBronx]

The multiple overlapping concerns of Griswold are suggested in this article by Prof. Bernstein in reply to Josh Hawley.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2908130