Professors NeJaime and Siegel Argue Substantive Due Process Is Crucial for Judicial Review

For decades, the constitutional objection to substantive due process — that is, the recognition of certain rights protected by the 14th Amendment’s liberty guarantee — has been captured by citation to Lochner, a long repudiated 1905 decision striking down a maximum-hours law as a violation of business owners’ liberty. In a recent article published in the California Law Review, “Not Lochner!: Substantive Due Process as Democracy-Promoting Judicial Review,” Professors Douglas NeJaime and Reva Siegel provide historical context for the Lochner objection, explain how it is wielded in today’s courts, and delve into the influence it has on the modern judicial system. 

“[W]e supply an answer to the Lochner objection by demonstrating how judicial review of substantive due process claims can be democracy-promoting,” they write, continuing, “Our democratic order depends on multiple fora to engage different elements of the public in collective deliberation and decision-making. We show that the canonical substantive due process cases, long maligned as antidemocratic, in fact arose as courts opened their doors to groups historically silenced in politics and offered a forum for speaking out when political channels were blocked.”

In this Q&A, Professor NeJaime offers modern contexts for Lochner and substantive due process doctrine.

What are recent examples of the Court invoking Lochner to repudiate substantive due process?

Both Dobbs, which overturned Roe v. Wade and took away a constitutional right to abortion on which women had relied for decades, and Obergefell, which recognized same-sex couples’ right to marry, involved substantive due process claims. In both cases, 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. In our work, we observe a longstanding pattern of invoking Lochner to repudiate substantive due process claims involving sexual and reproductive rights. In fact, in his 1971 article on “Neutral Principles,” Yale Law School professor and eventual Supreme Court nominee 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.”

How has substantive due process doctrine been arising at the Supreme Court recently? 

In an early March per curiam opinion in Mirabelli v. Bonta, the Court held that California policies requiring school administrators to obtain student consent before disclosing students’ transgender identity to their parents likely violated the parents’ constitutionally protected rights. 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 6th 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. In this respect, Mirabelli illustrates the dynamic we identified in our essay. Objections to substantive due process do not sound in abstract principle. The conservatives’ objection appears in some, but not all, substantive due process cases. We do not typically hear it in substantive due process cases concerning incorporation (such as application of the Second Amendment to the states) 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.

So what does the selective attack on substantive due process — and the selective invocation of Lochner — tell us about conflicts over gender and sexuality?

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 20th century, obscenity doctrine inhibited speech about the banned practices, thereby limiting the possibilities for mobilization and political action. The objection to substantive due process, including the invocation of Lochner, carries forward this legacy of obscenity, perpetuating the stigma historically associated with the prohibited 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.”