Document Type
Article
Publication Date
2025
Abstract
After the Supreme Court overruled Roe v. Wade, commentators made much about the possible demise of substantive due process—the idea that the Constitution safeguards certain substantive liberties that are not specifically or explicitly spelled out in the Constitution. Judges and scholars are debating which substantive due process decisions are next on the chopping block and whether the entire domain of substantive due process is in jeopardy. But a curious thing happened as the Court scaled back and openly questioned the traditional individual-rights line of substantive due process: Rather than eliminating it entirely, the Court seems to have transposed it elsewhere.
While the Court is restricting the contours of traditional substantive due process, in other areas of law, it has adopted doctrines and legal analyses that resemble it. In cases on presidential removal and Congress’s use of non- Article III courts, the Court has reoriented doctrines to inquire into whether particular arrangements are consistent with concepts of liberty that are not explicit in the constitutional text and are articulated at high levels of generality with remarkably little precision. The Court is reshaping the institutions of the administrative state based on this freewheeling jurisprudence that centers the Justices’ conceptions of liberty.
This Article examines what it coins the new substantive due process— the reemergence of a jurisprudence focused on broad, incompletely defined conceptions of liberty that examine whether laws are consistent with the Justices’ political, theoretical accounts of liberty. The Court’s emphasis on a notion of liberty that is trained on the administrative state sounds in an anti-establishment, populist register that purports to speak for the people who are supposedly being disadvantaged by elite, unelected, and undemocratic bureaucrats. But the new substantive due process is plagued by its own antidemocratic features and riddled with doublespeak concerning liberty: It empowers some parts of government, specifically the presidency, as it restrains others, all in the name of liberty. It also rests on a highly contestable presumption that government regulation is, by and large, hostile to liberty. This Article highlights the similarities between the old and new substantive due process to better understand what is happening in these changing areas of law (presidential removal and non-Article III courts) and where they might go next. It also attempts to explain the Court’s newfound comfort with some kinds of substantive due process but not others.
Recommended Citation
Litman, Leah M. "The New Substantive Due Process." Texas Law Review 103, no. 3 (2025): 564-634.
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