The Supreme Court Has Abandoned All Pretense
Unsurprisingly, the conservative justices apparently agreed with that view. The other parental plaintiffs, however, argued that the California law intruded upon their rights as parents, which they said were guaranteed by the Fifth Amendment’s Due Process Clause. The doctrine that the clause protects unenumerated rights through its reference to “liberty” is known as substantive due process. This argument, too, was apparently endorsed by the conservative justices without caveats.
Wait, really? Justice Elena Kagan, writing for herself and Justice Ketanji Brown Jackson, couldn’t help but note that the conservative justices have been deeply hostile to substantive due process until now. That hostility is practically an article of faith in conservative legal circles, in no small part because it formed part of the reasoning behind Roe v. Wade. Or, at least, it was an article of faith until it became a convenient means to an anti-transgender end.
To that end, Kagan quoted Thomas describing the doctrine as “particularly dangerous” because it allegedly allows judges to go “roaming at large in the constitutional field guided only by their personal views.” Gorsuch, she noted, has denounced the “judicial misuse of the so-called ‘substantive component’ of due process to dictate policy on matters that belonged to the people to decide.” And Kavanaugh, she observed, had criticized substantive due process by arguing that it had allowed “nine unelected members of this court the unilateral authority to write the Constitution.”