ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

In his answers to written questions dated September 21, Judge Roberts was asked this question by Senator Schumer, about the controversial doctrine of substantive due process:

You said repeatedly at your hearing that the liberty element of the due process clause of the Fourteenth Amendment provides substantive as well as procedural protections. You also said that you thought your view was one that would be accepted by every member of the current Supreme Court. In a concurring opinion that was joined by only Justice Thomas, however, Justice Scalia said the following:

“If I thought that ‘substantive due process’ were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation.� United States v. Carlton, 512 U.S. 26, 39 (1994).

Do you agree that what Justice Scalia said in this decision implies that he and Justice Thomas believe that “substantive due process� is not a right guaranteed by the Constitution? Please distinguish your own perspective on substantive due process from the one endorsed by Justices Scalia and Thomas in the above passage.

RESPONSE: As I said at my hearing, I believe the liberty element of the Due Process Clause of the Fourteenth Amendment provides substantive as well as procedural protections. I also believe that every member of the Supreme Court, including Justices Scalia and Thomas, has, at one point or another, agreed with this formulation. For example, Justice Scalia, in an opinion joined by Chief Justice Rehnquist and Justices O’Connor and Kennedy, wrote that “[I]t is an established part of our constitutional jurisprudence that the term ‘liberty’ in the Due Process Clause extends beyond freedom from physical restraint.� Michael H. v. Gerald D., 491 U.S. 110, 121 (1989)(plurality opinion)….

But virtually everyone agrees that the word “liberty� in the Due Process Clause means much more than merely freedom from physical restraint. Quoting this statement by Justice Scalia is completely irrelevant to Scalia's position about “substantive due process.� Judge Roberts concludes his answer this way:

Similarly, Chief Justice Rehnquist, in an opinion joined by Justices O’Connor, Scalia, Kennedy, and Thomas, noted that “[t]he Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.� Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

Let's look at the context of that quote from Washington v. Glucksberg:

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against 'certain government actions regardless of the fairness of the procedures used to implement them'") (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 -302 (1993); Casey, 505 U.S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, … and to abortion, Casey, supra.

It’s pretty obvious that the Court was simply summarizing its jurisprudence. I don’t think that Justices Scalia and Thomas were acknowledging the legitimacy of a constitutional right to abortion, or any other substantive due process right. IMHO, Judge Roberts is wrong about due process (for the reasons explained here), and I very much hope that the next nominee will be more in agreement with Justices Thomas and Scalia on this critical issue.

UPDATE: Note that Roberts also discussed substantive due process during his oral testimony.