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Monday, December 23, 2024

Realigning Standing with Substantive Due Process

Conservatives and liberals are quickly changing positions on a host of issues, now that there is a secure conservative majority at the Supreme Court. Examples include standing, textualism, agency deference, positivism, and more. 

I have been beating this drum for some time, but most of my arguments (like related arguments by other scholars) have been inferential. In other words, the ongoing realignment is rapid and dramatic, but largely undeclared. People, groups, and movements are repositioning, yet they have not come right out and said so. Nor have the repositioning actors pointed out that their discrete pivots are interrelated, yielding a realignment across domains. 

Lately, however, there are signs that some justices are self-consciously declaring a systemic change in outlook.

The best example is Parents Protecting Our Children v. Eau Claire Area School District, a much-discussed denial of certiorari over three dissenting votes. Parents of children enrolled in public school challenged policies surrounding “Gender Identity Support.” The parents argued in part that they have a right to know if their children are undergoing or considering gender transition at school. 

A unanimous Seventh Circuit panel, containing both Democratic and Republican-appointed jurists, rejected the claim for want of standing. The Supreme Court denied certiorari earlier this month. Justice Alito, joined by Justice Thomas, wrote a dissent from the denial, and Justice Kavanaugh separately noted that he would have granted the petition. 

Alito’s opinion reflects two major and interconnected pivots. The first involves standing. 

In 2013, Alito authored Clapper v. Amnesty International, a 5–4 ruling imposing stringent standing requirements. (Indeed, too stringent, in my view.) In brief, Clapper suggested that claimants could challenge alleged surveillance only if they could show that they were targeted by the surveillance—something very hard to do, given the surveillance’ secrecy. Under similar logic, the parents in PPOC would have standing only if their own children were actually affected by the school program being challenged. To quote the Seventh Circuit, mere “worry and concern do not suffice.”

In 2024, however, Alito doubts the Seventh Circuit’s “questionable” application of Clapper. The parents may well have standing, Alito argues, because they are kept “in the dark” about what is happening at school. The “fear” of being directly affected by the challenged program, Alito argues, is not “speculative.” These points parallel the failed arguments in Clapper. Those claimants, too, felt “fear” because they had been left “in the dark.”

So Alito’s dissenting opinion circa 2024 sounds a lot like the Court’s four liberal dissenters circa 2014. As if to underscore this shift, Alito concludes by quoting a 1976 opinion by Justice Brennan—thereby reaching back to a time before Justice Scalia led the conservative charge against lax jurisdictional rules. 

The standing realignment remains incomplete and in progress, as evidenced by the fact that Alito’s opinion is a dissent. The other justices didn’t stake out positions but simply declined certiorari. In cases like Biden v. Nebraska (2023), by contrast, the ideological repositioning appears more complete.

This first change has garnered some commentary, including on the Divided Argument podcast with Will Baude and Dan Epps. That commentary reflects the fact that our ongoing standing “realignment”—so recently unobserved or jarring—is rapidly becoming more like conventional wisdom. But this change, while important, must be understood in combination with a less salient but comparably significant development.

This second, related pivot has to do with substantive due process. 

For many years, legal conservatives have railed against substantive due process rights, which have been associated with Roe v. Wade (1973). Yet, in PPOC, Alito champions a claim rooted in substantive due process. 

At the start of his opinion, Alito emphasizes the importance of “parents’ ‘fundamental constitutional right to make decisions concerning the rearing of’ their children.” The internal quotation there is drawn from Justice O’Connor’s plurality opinion in Troxel v. Granville (2000), which rested on substantive due process. Alito seems to take both the existence and the judicial enforceability of unwritten parental rights for granted. 

Yet in Troxel itself, Justice Scalia refused to recognize that this sort of implicit right could be judicially enforced. Here is a taste: “I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.” Scalia’s skepticism was consistent with conservatives’ general antipathy to unenumerated or substantive due process rights, like the one recognized in Roe. Meanwhile, Justice Thomas concurred in Troxel’s judgment, noting that precedents recognizing the relevant rights had not been directly challenged. 

In stark contrast, Alito now argues for loosening standing doctrine based on the need for vigorous judicial enforcement of implicit parental rights. As he puts it, linking substance and procedure: “I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions.”

So, back in 2000, two strong conservatives either resisted or questioned the enforcement of a parental right that was unenumerated or rooted in substantive due process. Now, almost a quarter century later, two leading conservatives not only accept the right but want to expand it—and not only that, they also want to loosen jurisdictional principles in order to enforce and expand the right.

In this sense, standing and substantive due process are being realigned together. Seemingly discrete pivots are synchronized. 

The most straightforward explanation is that conservatives are increasingly viewing both capacious principles of standing and substantive due process as assets, rather than liabilities. With Roe and its legacy now receding into legal memory, the time has come for a growth of conservative-approved unenumerated rights, with vigorous judicial support. This changed appetite among conservative judges dovetails with broader intellectual trends, as conservative thinkers increasingly support what are effectively unenumerated rights, particularly under the Privileges or Immunities Clause (see, eg, scholars here and here; cf. McDonald v. City of Chicago (2010)).

All of this should sound familiar. Substantive due process was a conservative weapon when wielded by the justices of the Lochner era roughly a century ago. Liberals like Felix Frankfurter accordingly inveighed against unenumerated rights while insisting on strict jurisdictional limits, and that general combination of views eventually proved triumphant. But, after a while, liberals secure in their control of the courts began to look differently on substantive due process. Cases like Griswold v. Connecticut (1965) and Roe were the result. Scalia then took up Frankfurter’s mantle, as evidenced in cases like Troxel

If this narrative plays out, then Alito would fill the role of Justice Douglas: a transitional figure who early on supported judicial restraint before pivoting to a new posture of activism. (That comparison is not intended as a slight: Douglas had many fans in his day, and even now there are those who carry a torch for his jurisprudence.) But who will be the new Frankfurter or, to similar effect, the new Scalia? Justice Kagan, so far, seems to be the heir apparent.

So things are changing. But those changes are occurring within the context of larger, somewhat consistent patterns.

The above is cross-posted from Re's Judicata

Posted by Richard M. Re on December 23, 2024 at 08:00 AM | Permalink

Comments

“The parents argued in part that they have a right to know if their children are undergoing or considering gender transition at school. “

“This is the first time the Supreme Court has directly considered how the Equal Protection clause applies to gender-affirming care for minors.”

Suzanna, could you please explain exactly how the equal protection clause, which serves to affirm the equal but complementary inherent Dignity of every beloved son and daughter of a human person, and thus does not discriminate against the essence of being, in essence, a beloved son or daughter, could possibly be used as a defense for a type of “gender affirming care”, that requires the use of hormones and , in some cases, the mutilation of a child’s body, in a way that does not complement that particular son or daughter’s gender, and thus affirm it with appropriate care, but rather serves as an attempt to try to change the essence of that particular child’s gender, with inappropriate care, which would be, in essence, a complete denial of the spirit and thus the letter of The Equal Protection Clause?

How could such an erroneous claim not be, in essence, a complete denial of the original intent of the equal protection clause if one is now permitted to discriminate against the essence of being, in essence, a son or daughter, brother or sister, husband or wife, father or mother, in which I would argue, every son or daughter of a human person has standing .

Posted by: ND | Dec 30, 2024 2:37:18 PM

J.M.J.

“So things are changing. But those changes are occurring within the context of larger, somewhat consistent patterns.”

There was a Time in Constitutional Law when those who served to uphold our founding Judeo-Christian Principles served to uphold the unalienable inherent Dignity of human life, from the moment of conception to natural death, and the inherent Dignity of Marriage and the family, “the central social institution that must be supported and strengthened, not undermined”, for the Good of all our beloved sons and daughters.

What has changed is, our Constitution is under attack , from outside and within, by those who desire to deny the inherent unalienable inherent Dignity of human life from the moment of conception to natural death, and thus the inherent Dignity of Marriage and the family, those who believe that holding fast to respect for the inherent Dignity of human life from the moment of conception to natural death, and thus the inherent Dignity of Marriage and the family, is a burden and not a Blessing.

“Let Us Make Man In Our Image.”- The Blessed Trinity.

In fact, just as we are witnessing what appears to be “The Two Churches Within The Catholic Church” , The True Church Of Christ, affirming that God, The Ordered Communion Of Perfect Love, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost (Filioque), Is The Author Of Love, Of Life , And Of Marriage, and The Church of Apostasy, with its counterfeit magisterium, who, in denying The Author Of Love, Of Life, And Of Marriage, affirms their allegiance with “The One World Government With The One World Religion In The New World Order “, attempting to move closer to their dream of atheistic materialistic over- population alarmist globalism, could it not be any clearer that our founding Principles are under attack.

“So things are changing. But those changes are occurring within the context of larger, somewhat consistent patterns.”

And that consistent pattern is a desire to render onto Caesar or oneself , what belongs to God, and thus a denial of the fact that God Is The Author of our inherent unalienable Right to Life, to Liberty, And to The Pursuit of Happiness, the purpose of which can only be what God intended.

“When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defence of the family is about man himself. And it becomes clear that when God is denied, human dignity also disappears. Whoever defends God is defending man.” – Pope Benedict’s Christmas Address 2012

And thus we can know through both Faith and reason, The Truth Of Love does not rest between two extremes; Perfect Love does not divide, it multiplies, as in The Miracle Of The Loaves And Fishes.

At the heart of Liberty Is Christ, “4For it is impossible for those who were once illuminated, have tasted also the heavenly gift and were made partakers of the Holy Ghost, 5Have moreover tasted the good word of God and the powers of the world to come…”, to not believe that Christ’s Sacrifice On The Cross will lead us to Salvation, but we must desire forgiveness for our sins, and accept Salvational Love, God’s Gift Of Grace And Mercy; believe in The Power And The Glory Of Salvation Love, and rejoice in the fact that No Greater Love Is There Than This, To Desire Salvation For One’s Beloved.
“Hail The Cross, Our Only Hope.”


“Blessed are they who are Called to The Marriage Supper Of The Lamb.”


“For where your treasure is there will your heart be also.”

Posted by: ND | Dec 27, 2024 2:16:22 PM

I take exception. Wasserman's partisan propaganda is very high quality.

Posted by: Steve L. | Dec 24, 2024 4:04:33 PM

great information, keep on posting such informative blogs

Posted by: azuretrainings | Dec 24, 2024 5:22:38 AM

What does this realignment tell the world about the sincerity of these positions and arguments? What does it tell the world about American constitutional law academics?

Are these--failed--efforts at self-sanewashing?

Must the blawg now otherwise be bombarded with Lubet and Wasserman's low-quality partisan propaganda every week?


Posted by: A non | Dec 23, 2024 11:55:56 AM

If Alito truly believes that parents have a "fundamental constitutional right to make decisions concerning the rearing of their children," as he says, then he should vote to strike down Tennessee's law in Skrmetti. If he doesn't, he is proving himself a hypocrite whose votes depend solely on his ideological preferences. (But that should not be surprising.)

Posted by: Suzanna Sherry | Dec 23, 2024 8:57:36 AM

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