Neutral Principles?: The Substance of Substantive Due Process

Guest Blogger

Douglas NeJaime and Reva Siegel

In last week’s per curiam opinion in Mirabelli v. Bonta, the U.S. Supreme Court held that California policies requiring school administrators to obtain student consent before disclosing students’ transgender identity to their parents likely violated constitutionally protected parental rights. There are many potential objections to the Court deciding Mirabelli in the way it did. It was yet another “shadow docket” decision, with the Court eager to reach out to decide a question without full briefing and argument. If the Court had taken one of the similar cases on its merits docket, it could have been clearer about the scope of the right it announced.

Here, we raise a different, and deeper, objection. As Justice Kagan explained in a stinging dissent, “[e]ven in recognizing th[e] parental right, the Court cannot quite bring itself to name the legal doctrine—it is . . . substantive due process—that provides the right’s only basis.” “Substantive due process,” Justice Kagan observed, “has not been of late in the good graces of this Court—and especially of the Members of today’s majority.” Last term, in United States v. Skrmetti, when the Court upheld Tennessee’s ban on gender-affirming care for transgender minors on equal protection grounds, it refused to hear the substantive due process claims of parents supporting their children’s transgender identity, letting stand a Sixth Circuit decision denying that parents had constitutionally protected rights at stake. Yet now in Mirabelli, the same Court has recognized a substantive due process right of parents who may object to their children’s transgender identity. Even Justice Thomas, who in Dobbs asserted that “‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” joined with Justice Alito in ruling that not only the parents but also the teachers likely had constitutionally protected rights to object to the state’s policies.

In this respect, Mirabelli illustrates a dynamic we have been emphasizing for some time now. Objections to substantive due process do not sound in abstract principle. As we show in a recent essay, the Court is quite comfortable applying substantive due process in many cases—from incorporation of the Second Amendment to punitive damages—but objects in cases involving liberty claims by those engaged in long stigmatized conduct relating to reproduction, intimate relations, and family life.

In both Dobbs and Obergefell, the conservative Justices—in the majority in Dobbs and dissenting in Obergefell—attacked substantive due process by equating it with Lochner. It is no coincidence that the Lochner objection is raised in response to claims to abortion and same-sex marriage. Since the era of Griswold, the Lochner objection has been employed to stigmatize liberty claims concerning sexual and reproductive rights. In his 1971 article on Neutral Principles, Robert Bork famously equated the Lochner objection with sexual and judicial license, observing that a judge had “no principled way to decide that one man’s gratifications are more deserving of respect than another’s” or that “sexual gratification” was “nobler than economic gratification” and so lacked any basis “other than his own values upon which to set aside the community judgment embodied in the statute.”

As we show in Not Lochner!: Substantive Due Process as Democracy-Promoting Judicial Review, recently published in the California Law Review, if one understands the roots of the modern substantive due process cases, one can appreciate how the Lochner objection perpetuates a history of stigma and outcasting. The cases—from Griswold to Obergefell—arose as members of groups long excluded from the political process asserted claims to engage in conduct—contraception, abortion, sodomy, and same-sex relations—that had been banned for at least a century. Into the late twentieth century, obscenity doctrine inhibited speech about the banned practices, thereby limiting the possibilities for mobilization and political action. The objection to substantive due process carries forward the legacy of obscenity, perpetuating the stigma historically associated with the criminalized conduct and speech at issue. From this vantage point, the Court’s most recent brush with substantive due process makes sense. In Mirabelli, we see a Court prepared to recognize parental rights to object to a child’s “gender transition” but, with Skrmetti, not to support a child through “gender transition.”

The conservatives’ Lochner objection appears in some, but not all substantive due process cases. We do not typically hear it in substantive due process cases concerning incorporation, or punitive damages, or even most forms of parental rights. Instead, cries of Lochner are most likely to appear as an objection to a claim of liberty in intimate and family life that breaks with tradition.

 Douglas NeJaime is the Anne Urowsky Professor of Law at Yale Law School and can be reached at douglas.nejaime@yale.edu. Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School and can be reached at reva.siegel@yale.edu.