A Substantive Due Process Explainer: What Was the Basic Weakness of Roe?

Substantive due process is best known now as the bedrock of many of the most celebrated progressive Supreme Court victories in the last several decades. In addition to Roe, current doctrine holds that rights closely tied to the family — including the right to marry whoever you choose, the right to sexual autonomy, and the right to guide your own children’s upbringing — are among the unenumerated rights protected by the 14th Amendment.

Indeed, when the Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization in June, Justice Clarence Thomas argued in a concurring opinion that all of these rights must fall along with the right to an abortion.

But the Court only started to use substantive due process to advance equality and other progressive values fairly recently. There’s also a much darker history underlying doctrines like substantive due process.

Not long after the 14th Amendment was ratified, ex-Confederates, including a disgraced former Supreme Court justice, tried to twist it into a shield protecting white supremacy — and they very nearly succeeded. Several decades later, substantive due process became a tool of plutocrats, and the Court routinely wielded it to strike down pro-labor legislation.

Now, the power to read new constitutional rights into our founding document is held by conservative Republicans like Justice Samuel Alito — the same justice who relied on a centuries-old treatise written by a judge who sentenced two “witches” to death in his opinion overruling Roe. It is a terrible mistake to trust this man with that kind of power.

Abandoning substantive due process, moreover, should not mean sacrificing hard-fought victories for reproductive choice or marriage equality. A sounder strategy is to root these rights in constitutional provisions that offer more specific protections. The Constitution’s guarantee that no one may be denied “the equal protection of the laws,” for example, is capacious enough to protect both.

It’s time, in other words, to put substantive due process to bed.