Substantive Due Process (Part 2 - Privacy and Recent Era) Flashcards
Timeline from Lochner Era to Lochner Retreat to Griswold Era
1st = The Lochner Era featured an aggressive Court using SDP to strike down legislation on fact-heavy grounds.
2nd = The Lochner Retreat marked a more deferential approach to economic issues until Ferguson and for 2 years after.
3rd = Griswold marked the reawakening of more aggressive SDP jurisprudence akin to Lochner, but focused on family and privacy issues like contraception, marriage, and abortion.
Griswold v. Connecticut and its Relationship to the Lochner Era (the Penumbra)
Griswold: A state law banned contraception for married couples even though its purpose was to prevent adultery. The law would have passed Rational Basis but here the Court struck it down and therefore elevated the SoR beyond RB. At the same time, the court entertained SDP again.
Relationship/Distinction from Lochner Era: The majority liked Meyer and Pierce (family protections based on SDP) but disliked a lot of the economic scrutiny characteristic of the Lochner Era. Justice Douglas in the majority of Griswold distinguished these cases based on the right to privacy as part of a “penumbra” of constitutional rights around more personal stuff. He wanted to get the same result of aggressive judicial protection from Lochner but through penumbras instead of via SDP. The penumbra idea was born and died here in Griswold.
Concurring justices would have used the terms from the Timbs incorporation test (1. deeply rooted OR 2. inherent in ordered liberty) to find unenumerated rights in the word “liberty” under the 14A.
Summary of Views on Finding Unenumerated Rights
1) Reject SDP = there are no unenumerated rights (Justice Black’s opinion stemming back to incorporation slippery slope)
2) Penumbras = A penumbra is the blurry edge of a shadow. The penumbra idea is that unenumerated rights emanate from enumerated rights like 1A. Similar slippery slope problem exists with penumbras (Justice Douglas’ view. no one holds this anymore)
3) SDP for unenumerated rights but they only get Rational Basis review
4) SDP for unenumerated rights but they get more than Rational Basis
Roe chose #4 = more than RB for unenumerated rights found under SDP
The Discarded 9A
Courts don’t give the 9A any real role to play. The 9A basically says that just because we are listing enumerated rights in the Constitution does not mean that there aren’t other rights that the people possess. There are 2 possibilities about the 9A, but the Court chooses #2 (it means nothing):
Possibility #1 = The 9A is an invitation to the Court to create additional unenumerated rights, even wholly outside the terms “liberty” or unrelated to the SDP. Straight out of the 9A alone. There is no test for this and it creates massive judicial discretion.
Possibility #2 = The 9A wasn’t there to do anything with respect to the states. If the 9A was just limiting Congress, then it’s kind of pointless now. Court chooses this one.
Modern Reality: 9A carries no real weight. It’s like an “ink blot” on the Constitution. It says: “Congress shall make no law that [ink blot].” A judge should not speculate about what was under that ink blot because he’ll inevitably end up putting stuff he wants there.
Roe v. Wade
Roe is controversial because of more than just abortion. It further drives the court down the SDP road despite having supposedly abandoned Lochner. It did this first by saying that fundamental rights get strict scrutiny.
It also did this by taking the incorporation test and using its prongs “1) deeply rooted in history and tradition OR 2) inherent in the concept of ordered liberty” to find unenumerated rights.
Roe said the meaning of “liberty” in the 14A included the right to Privacy that covered both contraception and abortion. A history and tradition argument will not prove a right to abortion because many states outlawed it, so the Court focused on an “ordered liberty” argument.
Roe applied strict scrutiny to abortion laws with some caveats:
Roe Framework: The state’s compelling interest in the mother’s health begins after Trimester 1 because at that time, abortion becomes more dangerous than childbirth. Its compelling interest in the child’s life begins at the end of T2 because at that point the child can live outside the womb.
Casey changed this framework because T1 and T2 were headed on a “collision course”.
Casey v. Planned Parenthood
Forget about compelling interests. The only point that matters is viability.
After viability, the states can ban abortion except in cases where the life or health of the mother is at risk.
Before viability, a state can restrict abortion but cannot impose an UNDUE BURDEN on a woman’s ability to get an abortion.
An undue burden is a law that poses or intends to pose a substantial obstacle to a woman’s ability to get an abortion.
Small obstacles are ok. A 24 hour waiting period before the abortion is ok under Casey. That’s not an undue burden.
Dobbs (2022) Summary
Returned the issue of abortion to the states. Cabined stare decisis. Retreated from SDP toward deferential view.
Dobbs’ Approach to Stare Decisis
5 factors should be taken into account for deciding whether or not to follow Stare Decisis:
1) Nature of the error
This is the most important factor. If it’s a big constitutional error, stare decisis takes a back seat because the error should be fixed. Stare decisis is stronger for statutory than constitutional matters because it’s easier to change a statute than the constitution (via amendment)
2) Reliance interests
If people have relied on it, then stare decisis should be enforced. Here, the majority took a narrow view of reliance (at time you got pregnant) and the minority took a broad view (how you’ve planned years of your life).
3) Quality of reasoning
Thought Roe and Casey were egregiously wrong.
4) Workability of rule
Doctors not really sure under Roe and Casey
5) Disruptive effect on other laws
Pettys forgot they talked about this one. He thought it could be baked in with the others.
Dobbs’ Modified Incorporation Test
The Test: Court cites Timbs (incorporation) and Glucksberg and says that abortion has to be:
1) deeply rooted in the nation’s history and tradition; AND
2) implicit in the concept of ordered liberty.
The Difference: Framing this as an “AND” test is new. Normally it would be an “OR” test.
Effect of this Difference: The Court is putting itself on the sideline with respect to social change at the national level by raising the bar for the test and making itself more deferential.
This is effectively the 2nd Lochner Retreat / SDP retreat (DEBATABLE)
Dobbs’ Application of Modified Timbs/Glucksberg Test
The Court says that abortion is not historical/traditional in the US because it was criminalized for a long time in most places.
If something was implicit in ordered liberty, it was kind of baked in. But ordered liberty set limits and boundaries between conflicting interests. But because people in diff states have diff views on abortion, ordered liberty should allow them to order themselves as they see fit even if that differs regionally.
Dobbs’ response to the “meaning of life” passage: “While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.”” So there’s a sharp dichotomy between how you think and act. Just because you think about stuff doesn’t mean you can act on it.
Extension of Dobbs’ SDP criticism to Lawrence (gay sex) and Obergefell (gay marriage)
Majority says “don’t worry about it”, the destruction of unborn life is distinguished from those.
But Justice Thomas in concurrence inherits Justice Black’s view about the slippery slope and thinks all of SDP is illegitimate and says all SDP decisions are “demonstrably erroneous”.
Bowers and Lawrence
Bowers: Post-Roe, pre-Casey case where man arrested for sodomy which had been banned. Court ruled no right to adult consensual sodomy. Majority had narrow framing. Dissent took broader framing (i.e. does a person have a right to adult consensual sex in one’s own home). RB review. Enforcing public morality was a legitimate gov interest.
Lawrence: Overturned Bowers and made gay sex legal. After Casey but before Dobbs. This is a Kennedy opinion so it’s murky. SoR is unclear, but it seems it’s applying RB and saying the law fails RB. What we do know is that it talks about autonomy and asks if a law is “demeaning”. Kennedy says people have a right to not be “demeaned” based on sexual choices. He relies on Casey’s protection for personal decisions related to intimate relationships. Emphasizes AUTONOMY, SENSE OF SELF, and IDENTITY.
Scalia dissent in Lawrence: Majority never said same-sex sodomy was a fundamental right, so the majority should not have concluded that the statute failed RB.
Equal Protection Issues in Lawrence
O’Connor takes the view in Lawrence that there is an EP issue because it was aimed at a particular class without justification.
Stare Decisis Inconsistencies
Conservatives: Roe > Dobbs
Liberals: Bowers > Lawrence
Hypocrisy or distinguishable? This is highly debatable/political and also influenced by one’s opinions on whether a fetal life is a person or not (because if you assume fetal personhood, then the deprivation of life distinguishes Dobbs from the deprivation of liberty in Lawrence).
Framing heavily influences outcomes. But there is no real test or rule for how to frame things. Bowers framed narrowly, but Lawrence framed broadly. Conservatives tend to frame in narrow and specific ways that make the Court more deferential and less likely to intercede, whereas liberals tend to frame broadly and judicially intervene.
Other Fundamental Rights
Members of extended families living together (zoning ordinance said no more than 6 people in a house, struck down)
Right of custodial parent to prevent grandparent from getting visitation rights (state can’t force parent to let grandparent visit)
Maintaining custody of kids (state must pass strict scrutiny)
Ability of prison inmates to get married without warden’s approval
Marriage of people failing to pay child support obligations
Interracial marriage (Loving v. Virginia)
Voting - unless you’re a convicted felon, in which case it does not violate any fundamental right to deny your vote
