(Posted November 5, 2020) Not a peep out of Ninth and Franklin today, so let’s take a look at an issue that will be on a lot of lawyers’ minds in the coming months. The confirmation of Justice Barrett to SCOTUS has many observers musing the prospective longevity of Roe v. Wade, to say nothing of the Affordable Care Act. Let’s bite off a small chunk of that topic: the role of substantive due process in our modern jurisprudence.

That sound you just heard was hundreds of lawyers’ eyes rolling simultaneously. Many lawyers don’t encounter SDP in their practices and haven’t considered it since the ordeal of Constitutional Law back in law school. Many nonlawyers will understandably wonder what it means: Due process must involve procedure; how can it be substantive?

If you’re looking for an in-depth discussion of the origin and contours of this legal principle, look elsewhere. The world is full of law-review articles on the subject, most (though not all) making for quite dry reading. Because I love you, my dear readers, I plan to keep this breezy. We will instead focus on some of the holdings that turn on substantive due process and its near cousin, the right to privacy. This will necessarily focus on federal decisions, those arising in SCOTUS.

Any attack on Roe will likely strike at its underpinning in SDP. That decision held that before fetal viability, a woman had a privacy right to be free from government interference in her decision whether to have an abortion. (Roe doesn’t stand for “abortion on demand up to the moment of birth,” as many of its detractors insist.)

But we’re here to describe the bounds of SDP rights; not to advocate. As I’ve stated many times, we don’t do politics here at VANA, and I’ll leave that to others.


To today’s audience, freedom to marry points immediately to Obergefell v. Hodges from 2015, where the Court ruled that same-sex couples had a right to marry, just like heterosexual ones. A substantial portion of America still rankles at this holding, but the large number of same-sex spouses here won’t go away.

The marriage issue goes deeper, though: Loving v. Virginia (1967), which barred antimiscegenation statutes, turns on SDP analysis. While I can envision that substantial portion of America described in the previous paragraph, I doubt there’s more than a tiny sliver of Americans who agree that states may prohibit interracial marriage. Loving is now a fully accepted part of our society. Even so, abandoning SDP will undercut the ratio decidendi of Loving.

Reproductive rights

Roe v. Wade is, of course, the star of the show here, but its analytical ancestor, Griswold v. Connecticut (1965), would likely fall with the same blow of the judicial axe. Griswold holds that married couples have a privacy right to use contraception if they wish. (The Court added unmarried couples to the protection of this umbrella seven years later in Eisenstadt v. Baird.) The State of Connecticut had barred the use of contraception; the justices ruled that the government had no place in private bedrooms. As with Loving, I seriously doubt that most of America would tolerate a reversal of Griswold’s holding.

Another decision implicates the decision whether to bear a child at all: Carey v. Population Services Int’l (1977) holds that even minors have the right to decide whether to use a pharmaceutical called Plan B to prevent pregnancy.

Family and personal relationships

In Pierce v. Society of Sisters (1925), the Court applied SDP to strike down compulsory public-school attendance, holding that parents have a right to send their children to parochial schools. This was one of the first decisions to recognize noneconomic substantive due process. Previous cases, such as Lochner v. New York (1905) had addressed the individual freedom to contract.

End-of-life decisions are the focus of Cruzan v. Director (1990), in which the Court ruled that a terminally ill patient has the right to refuse life support. Media dubbed this the “right to die” case, noting that it was different from physician-assisted suicide. This decision is the foundation for advance medical directives (something you should have, in my humble opinion).

SCOTUS later applied SDP to invalidate prohibitions of sexual relations between consenting same-sex adults in Lawrence v. Texas (2003), reversing a decision announced merely 17 years before.


These, then, are some of the rights that the law now affords to American citizens, all based on substantive due process. The principle has its share of detractors, most famously Justice Nino Scalia, who scorned it as “infinitely plastic,” seemingly able to cover rights mentioned nowhere in the Constitution. Justice Clarence Thomas maintains that antipathy today; readers may see his frequent dissents in recent caselaw, criticizing the doctrine harshly.

I sense that Thomas may have company now in the form of the three Trump-appointed justices: Gorsuch, Kavanaugh, and Barrett. If these four agree to revisit the entire concept of SDP, they’re likely to find a willing ally in Justice Alito, able to form a five-justice bloc willing to cast the principle into the annals of legal history.

Closer to home, Justice McCullough of the Supreme Court of Virginia has expressed his skepticism of SDP. In a concurring opinion in Palmer v. Atlantic Coast Pipeline in July 2017, he observes that the SCV has never recognized a substantive component to our state constitution’s Due Process Clause; the court has discussed the right only in the context of federal decisions. He goes on to note that nothing in the text or legislative history of our constitution indicates that such a right exists in Virginia law.

Justice McCullough then adopts Justice Scalia’s argument that SDP is too pliable and undefined to be useful as legal doctrine: “Having made its peace with economic legislation, shape-shifting substantive due process has now found new form as a device to invalidate a different kind of disfavored legislation, usually by slender majorities.” He argues that other courts’ attempts to apply the doctrine have resulted in uneven and ill-supported holdings.

The concurrence includes this fascinating passage toward the end; I quoted it when I reported on the ruling in 2017, and I’ll repeat it again here:

To summarize, then, the United States Supreme Court deployed substantive due process in Dred Scott, and came to regret it; relied on substantive due process anew in the Lochner era, and again came to regret it; and to the regret of a vocal minority of the Court, has once more deployed it in our time. If the absence of any textual or historical support for the concept were not enough to persuade me that we should not embrace substantive due process as part of Virginia’s constitutional jurisprudence, a review of the United States Supreme Court’s jurisprudence convinces me that we ought to leave “substantive” due process and its shabby and disorganized baggage train across the Potomac.

No justice joined this concurrence, because it wasn’t necessary to the Supreme Court’s holding. But you should assume that this line of thinking has company on the court. An attempt to claim a right based on substantive due process arising from the Constitution of Virginia is likely to find stiff resistance from the bench.

For now, SCOTUS-watchers will be on the lookout for cert grants where the new Supreme Court can address SDP. The justices, if they choose to strike down Roe, may tailor their ruling narrowly, preserving somehow the principle of substantive due process in non-abortion contexts; or they may paint with a broad brush, echoing Justice McCullough’s fiery words and calling into question the several rights enumerated above. If they take the latter approach, several aspects of American life may change significantly.