What Are the Liberties Not in the Constitution?

0:00You ready? I was born ready. Welcome to Advisory Opinions! I'm Sarah Isger, that's David French, and do we have a treat for you guys? It is Drumroll. The introduction of the Scotus Blog Advisory Opinions Extended Universe. We are bringing on board Amarika's Constitution with Andy Lipka and a Keel Read Amar and divided argument with Will Boad and Dan Epps. And all of them will be joining us for this episode today talking about substantive due process. What is a substantive due process? So good, so good, so good. Spring styles are at Nordstrom Rack stores now, and they're up to 60% off. Stock up and save on rag and bone, made well.

1:02Vince, All Saints, and more of your favorites. Why do we rock for the hottest still? There's so many good brands. Join the Nordy Club to unlock exclusive discounts, shop new arrivals first, and more. Plus, buy online and pick up at your favorite rack store for free. Great brands, great prices. That's why you rack. It's crunch time at work and you need to bring wings to your work day. Visit redbull.com slash getting it done. And answer a couple questions about your work style to get a Spotify customized playlist tuned to your productivity. Plus, score a can of red bull on us while you go from to do to done. And remember, red bull gives you wings. Supplies are limited, term supply. Visit the website for more information. David, a few updates before we get to all of our new friends and old friends, current friends, et cetera. First, AO listeners have raised $5,000 already for the Supreme Court Historical Society's hometown program.

2:04The one that Abriel came to talk to us about while skipping school as it turns out. We didn't know that in advance, but we do appreciate her skipping school. As we have explained, the publisher keeps track of every single purchase of the book any format. So if you buy a copy of last branch standing between March 1st and March 17th, we will be able to see that and we will donate $30 to the Supreme Court Historical Society's hometown program so that high school students can go moot these really fun Supreme Court cases that have some tie to their hometown. And if we hit $7,500 and we are, David, two thirds of the way there, if we hit $7,500, Chris Christie has agreed to come back and regale us with insane stories, his law practice. I have confidence, Sarah, the people demand more Chris Christie. And so this is completely in the people's hands.

3:04If you demand more Chris Christie. And the reason why we're saying that is he is without question our most popular guest we've ever had. We're sorry, Justice's Gorsuch and Breyer. I know. Just to hear it. I know. It's crazy. But Chris Christie is number one in the guest rankings, which is kind of like a little secret of the podcast, is that actually it's not necessarily the case that everyone is super over the moon about having guests, except for this one where everyone's going to be so excited by our guests. Although I will say Sarah, I just want to apologize in advance. We had way too much Beatles talk and trying to identify the identities of the people in the conversation and way too little Avengers talk. Because this is more like a crossover type episode. And there's more people to choose from from the Avengers. We had a greater menu. So yeah, I just apologize for that. It was a failing on my part.

4:05One more housekeeping. Advisory opinions will be live at the University of Pennsylvania on March 18th at lunch. So if you live in the Philadelphia area, definitely come on over. We have Judge Beebus from the third circuit joining us. So that will be a fun time. And David, just to introduce the topic that we're going to talk about with our extended universe, whether you're into the Beatles or Marvel or the Beach Boys. This is substantive due process. So yes, it involves some history that we've talked about on the podcast for sure. But really, this is about that Mira belly versus Bonta case. And this was about the California law which prohibited teachers from sharing information about their students, the children of the parents, whether that person was going by different pronouns, transitioning socially at school. The teachers were not allowed under state law to share that information with parents. And this came on the Supreme Court's interim docket.

5:07So what the status quo would be, whether that law was going to go into effect as this case was going through the courts. The district court said no, the law couldn't go into effect. The night circuit said yes, it could. And the Supreme Court six to three said no, the law will not be in effect as this case is pending. Now as we noted, it felt a little bit more like it might have been eight one or nine zero on the merits of the constitutionality of the law itself. But in terms of whether the court should intervene at this interim stage, the status quo question, that was definitely six three. We had a procuring opinion, then we had a concurrence written by Justice Barrett, joined by the Chief Justice and Justice Kavanaugh. We had a dissent from Justice Kagan, joined by Justice Jackson, and Justice Sotomayor just noted that she would deny the application in full and Justice's Thomas and Alito noted that they would grant the application in full. We did not hear from Justice Gorsuch at all.

6:08So we are making somewhat like factless assumptions that he was in the sixth. But he doesn't have to be because they would have had five votes without him. So we truly actually have no idea where he was. So it's a little unfair. We're speculating with stereo information aside from his past decisions and predilections. David, what are the facts or the law that you think people need to know before jumping into our extended universe conversation? Yeah, the really key part of this is that this was a policy that prevented school officials from telling parents of minor children if their children were transitioning at school. Now, the justification for a law like this is an essence that there are parents who strongly disapprove of youth gender transition, for example. And there is this presumption, I believe, that kids are put in danger if the parents are told over the objection of the kid. So there's this presumption of dangerousness, which attaches when you're talking about is permitting teachers, for example, to talk to parents about their kid.

7:15But the problem here is that that's just not how constitutional rights work. If you have a constitutional right as a parent to direct the upbringing of your child, that constitutional right cannot be preemptively stripped away from you on the basis of an assumption that if you have the information that the state is withholding from you, that you would abuse your child. Now, obviously, if there is evidence of, say, actual physical abuse, then, of course, you know, you've got mandatory reporting requirements that kick in, you would have police involvement, et cetera. But this was a law really passed on the basis of almost a presumption of abuse, and that's not the way constitutional rights work. And the precurium decision, which is laying all of this out, was really notable, Sarah, because on the one hand, it seemed as if you could rest this entire case in the recent mood case, which came out last term. That's about parents having an ability to opt out of instruction when that instruction violated their sincerely held religious beliefs.

8:19That was decided on free exercise grounds, but the precurium opinion also refers to some cases decided under substantive due process. And there's a brief back and forth, or there's a back and forth here between Justice Kagan, Justice Barrett, about substantive due process. And now this is something that you're going to hear the rest of this podcast about, so I don't want to do too much on it. But let's just say that it was an eyebrow raising surprise to a lot of people, as Sarah will explain after the break, when they saw a conservative majority, or at least part of a conservative majority referring to substantive due process that was supposed to be, at least in some people's minds, an extinct doctrine. And so we're going to talk about how extinct is it, how much does it matter, and it's a great conversation. I'm looking forward to you all listening to it. Here are the cases that I think it would be helpful to have handy in your brain before we start this conversation.

9:20One, obviously this one that we just talked about, you'll hear it referred to as Mirabelli and Bonta, because I couldn't remember quite how to pronounce Mirabelli. But if you were doing correct citation, it actually would be Mirabelli and not Bonta, because we take the non-public official who's getting sued or whatever, if you're curious why cases are known by one name versus the other, Bonta is the attorney general of the state of California. So we try not to ever use his name, because he could be in a lot of cases, because he's going to get sued all the time as the age of California. But yeah, Mirabelli versus Bonta. Next case to note, Dobbs, right, Dobbs v. Jackson women's health, that's the case that overturned Roe v. Wade slash Casey. So that one's all about abortion. Next is Scrimetti, David, you and I have a whole episode on this case. And in fact, we have an interview with Jonathan Scrimetti, the attorney general of the state of Tennessee about this case. This was about the Tennessee law that banned hormones or surgery for minors who wanted to transition or had been diagnosed with gender dysphoria.

10:28And then David, the last case that I think would be helpful for people to know is Gluxberg. This is actually a 1997 case where the Supreme Court upheld a law banning physician assisted suicide, saying that it did not violate the due process clause of the 14th amendment. You're also going to hear some random references to loving v. Virginia, that's an interracial marriage. And on Griswald v. Connecticut, which is on birth control. You'll even hear a Lawrence v. Texas, which is the case about the Texas law that banned sodium, criminalized sodium. So lots of case citations in here, but I think you'll be able to follow them all. And so without further ado, the extended universe. America leads the world in medicine development. It matters. We get new medicines first, nearly three years faster. 5 million Americans go to work because we make medicines here at home. And not relying on other countries keeps us safe. But China is racing to overtake us.

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13:31Ethos has been recognized by business insider as the top provider for instant no medical exam life insurance and holds a 4.5 out of five rating on trust pilot. Protect your family with life insurance from ethos now by going to ethos.com slash a.o. In as little as 10 minutes, you can get your free quote and up to $3 million in coverage at ethos.com slash a.o. That is E-T-H-O-S dot com slash a.o ethos dot com slash a.o application times and rates may vary. And so without further ado, let us introduce our new scotus blog podcast extended universe. Let's start with Amarika's Constitution. Andy Lipka, I'm coming to you first. You are the host of this podcast. Describe it for us. The idea started around 2016 because Achille and I did a program together where he taught a whole bunch of people about the Civil War era and so forth.

14:32And afterwards, you know, I was talking to him about his kind of his project. You know, what is he aiming for with his life? And you know, he's trying to make the Constitution at once understandable to regular citizens and he also wants to say things that matter to Supreme Court justices and clerks and other academics. And he has a gift for that in my view. And I knew that because I was able to understand that when I read his stuff. And you know, I'm a non lawyer. So I said that if really your project is to get this out to more people, you should do a podcast. And his response, of course, was what's a podcast? Look, I was an all of the great man. So I was deferential to him. So I explained what it was and told him, you know, and said, what do you want to do? He's like, well, let's go through my books one chapter at a time and he starts reading his book onto the podcast. So I said, no, that really, that's not. Let's try to make things a little more relevant to what's going on, you know, day by day week.

15:33And we'll also, you know, bring in things from, you know, writings and friends that you have. And I just said, you know, because you've been in both in these different spheres, you know, in the, you know, sort of high end legal world. And, you know, people like me, he knows people in lots of different areas. So I thought that bringing it, we would get great guests. And that's kind of what's happened, you know, over time, as we've had, you know, guests from, you know, Bob Woodward and Ruth Marcus and Linda Greenhouse and the, you know, and Ed Wailen and kind of the journalism, you know, area to Justice Breyer and Jamie Raskin and Maggie Goodlander. And plus, you know, legal experts like Will Bowde and Mike Paulson and many others. So that's, that's happened. And so week by week, you know, I'm kind of a stand in for the audience, asking, you know, questions about things that people that are interested in the Constitution, but not necessarily deeply knowledgeable about it, I might ask.

16:33And then a keel answers it from the point of view of someone that does know a lot about the Constitution. So I think we managed to hit both those audiences in our podcast, even as he does in his, in his work. Professor Amar, is it fair to say fair to describe America's Constitution? I think of it as like part history, part interesting guest and part applying that history and the interesting guest to the news of the day. Yes, that's what I'm trying to do while also frankly doing what Andy tells me to do and not doing what Andy tells me not to do. Andy Lipka is someone I didn't know 10 years ago, he's become in one of my two or three closest friends in the world, and we have a lot of fun together. And I'm very grateful to him and he's really good at what he does. So I'm a big Beatles fan, you know, I love the fab four, but early on at least without George Martin, they're, you know, the 50th or the producer, there really isn't quite the Beatles.

17:35And Andy Lipka is my George Martin. And that makes you, Ringo, Paul, it's all everyone. You're all of them. Well, let me say they said that, you know, they said says that John was the mind and Paul was the heart and George was the soul and Ringo was the drummer. So you decide. Okay, we're going to, we're going to touch on some of the substance that y'all do in America's Constitution in a little bit. But next up, we have divided argument, the podcast with professor from University of Chicago, Will Bowde, and professor from Washington University, Dan Epps, are also bloggers for the interim docket blog on SCOTUS blog. And divided argument, I have described it as the senior seminar. Perhaps professor Epps, you can give us your version. So we describe ourselves as an unscheduled, unpredictable Supreme Court podcast. And you asked me, you know, before we started recording to kind of say who might want to listen to the show.

18:42I don't really want to do that. That made me a little nervous because the answer might be nobody. But the idea is on an unscheduled basis, Will and I just get together and pick the cases that are, you know, recently released or pending at the Supreme Court and the shadow docket orders, et cetera. And talk about them. We only talk about the ones that we find interesting. And I think we only talk about the ones where we think we can say something interesting. And maybe that's a little different than what is being discussed in the mainstream media and on the regular commentary it. And, you know, that means often choosing some of the kind of nerdier Fed courts type cases. You know, we talk about the kind of big picture or, you know, social issues, blockbuster cases, some. But we tend to try to zero in on, you know, areas of those cases where, you know, we can say something that's maybe different. Professor Boad, do your law students listen to divided argument?

19:44And what percentage of it do they follow along with? You know, I don't ask them because I don't want to create pressure for them to listen. But we did just do a live show here at the Sushaka last week and we filled the classroom. So we seen a lot of listeners, somebody who's even there and then divided argument shirt asked a question on the air. If there is a maybe a distinctive contribution, it's that we really focus on law. And that's part of why we often end up talking about the cases that might be lower salience to the news. But we think there's still something, you know, legal there. And that, but that, you know, hopefully is relevant and interesting, it matters to people. And the premise, which I would have thought was banal except that people keep getting mad at us for doing the podcast, was that two people who have very different normative premises, then always different, but common things from different directions can talk productively about the Supreme Court by talking about the legal arguments and which ones work and which ones don't. The fact that people regularly give Dan a hard time for being willing to associate with somebody evil like me. Again, as a sign, this has been a little more subversive than I would have thought it should be, but there you go. Yeah, it's weird because I think the premise in some ways was to have someone, you know,

20:49from the left and the right, but of good faith, talk about these cases. But I feel like listening to it, you don't actually disagree wildly over cases. You'll really just nerd out about the cases. And I think it would be hard to figure who's right and who's left. This isn't like a cable news show with two law professors who bicker at each other. Yeah, I think we try to stay away from that. I mean, I think we could, depending on what we pick to talk about, we could end up there. I think the main difference is, you know, I think Will always says, you know, the court is amazing. And I sometimes say, well, maybe there, maybe the majority is not so great. But for the most part, a lot of the legal issues I think we have, you know, somewhat convergent views. Sometimes yes, sometimes no. Well, let's actually show the audience instead of just tell. And this is meant to be kind of a taste of the extended universe to come. In terms of having you guys on this podcast more.

21:49And from time to time, we hope having the full extended universe here together. Now, Andy, I want to turn this over to you because I have a question for Professor Amar. But I think you are the Professor Amar translator. So I want him to, this is like talking to AI like a prompt. I'm giving you the prompt. Andy, I want to hear from Professor Amar some of the maybe unthought about history of substantive due process. But I don't want him to give us a 30 minute lecture. Like I don't want us to like at first God created the universe. So I'm going to leave this to you on the best way to phrase this question to him. Well, Andy is thinking there was a law law students get many years ago featuring me and my brother Vick as characters. And it was rain man and Vick by the way is on our podcast all the time.

22:49And I was the Dustin Hoffman autistic person. And he was Tom Cruise who could actually translate the autistic person, you know, and help him, you know, deal with the world. So, so Andy, I guess is now Tom Cruise. Everyone has always compared him to and you and your brother write a great column for scotus blog that the column she'll have been writing recently diving in to some of the Amiki on birthright citizenship has been really great. Super helpful for me, by the way, as we build up to the birthright citizenship argument on April 1. Andy, I'm looking at you now. Okay. So, so Achille, just a spare right say concurrence in this in this opinion. And she starts off basically by saying that the substantive due process is a controversial doctrine. She says it, it asks us to find unexpressed rights in a constitutional provision that guarantees only process before a person is deprived of life, liberty or property.

23:54So, can you make some sense of that? So, I think she's right that process in ordinary language means procedure, fair procedures like jury trials or in a criminal case, proof beyond a reasonable doubt. And substance is in many contexts, the opposite of process. I'm basically with John Hardeele, a very great law professor who said that substance is due process seems almost a contradiction in terms of oxymoron. But John Ely says, and I'm with him not to worry because even if we don't didn't use that phrase, there is an idea of unenumerated rights as against the federal government. You could look at the ninth amendment, which talks about rights that aren't enumerated, but do exist. Doesn't quite tell us how to find them, but it seems to suggest that they are there. And when it comes to states, another clause of the 14th amendment, which has a due process clause, says that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

25:01And privileges and immunities can be substantive as well as procedural and it doesn't itemize them all. So, there are in my view in the Constitution, there are acknowledgments in the Constitution of unenumerated rights. They're not all listed. And then the game becomes, the question becomes, how do we find them in a proper and faithful way? And of course, Justice Barrett then asks that question herself and then goes on to answer it, part by referring to the Gluxberg case. But before we, before we discuss that, you're referring to their section one of the 14th amendment in part. And to some degree, you're equating, seems to me or at least analogizing the sentence that says that privileges or immunities will not be abridged with later on in that sentence where it says that due process of law shall be not be denied to any person within jurisdiction.

26:01But of course, the first one only refers to citizens and the second one refers to persons. So, it's hard to say that these things are equivalent under those circumstances, isn't it? You're right. And DC Andy always nails me to the wall and he immediately moves to some of the complexities here. I don't say they're identical. The idea of substance to do process and privileges or immunities. And I think a difference might very well be how we think about non citizens that would just quintessentially be aliens. But I do want to remind you that aliens or just persons generally are entitled to equal protection. And sometimes treating citizens better than aliens won't really be justifiable on equality grounds. Sometimes it will, but you're absolutely right. If we moved, if the court moved from substantive due process to privileges or immunities, I claim most of many of the results that were sensible if label substantive due process would be sensible if label privileges or immunities.

27:14But there might be some differences when it comes to certain applications, especially for non citizens that quintessentially aliens. Okay. Professor Boad, this seems totally insane to me. Again, forget the case, forget Bonta for a second, just historically speaking, right? Conservatives start substantive due process, liberals take over substantive due process. And the whole point it seems to me of the rise of originalism and conservative legal philosophy from 1978 to today, well, to last week, was a fight against substantive due process. Professor Amar has given us a perfect way for conservatives to ditch substantive due process while still recognizing fundamental unenumerated rights like the right to raise your children. So why, in the year our Lord, 2026, am I seeing one of the most conservative justices on the court talking about substantive due process still?

28:17Today is not yet come when the court has recognized that these slaughterhouse cases were wrongly decided and that it should be recognized the privileges or immunities since the United States that they may, that they may yet come. I will say, I don't know that it's totally fair to say that the point of originalism was to get rid of substantive due process. Originalism existed long before Robert Bork and Anthony Scalia started practicing it and it exists long after they've died. But it is true that there was a fundamental rise of the conservative legal movement that was excited about originalism in part because it seemed like a way to say what was wrong with a bunch of things the war on court was doing in the burger court. And it is true that now that those justices are in power, they are doing the things the war on court and the burger court were doing. Sometimes different, sometimes better, sometimes frankly worse, friend of many of these podcasts Richard Ray, certain about this in a couple of contexts calling it, you know, a legal realignment, the way there are political realignments. And I think what we can say is in a sense it was predictable that once there was a conservative majority of the Supreme Court, they would not be as wedded to judicial restraint as they had been before.

29:19And there are defenses of what they are doing that we can talk about in the basis of precedent, but in a sense this is predictable. But I did not think it was going to happen so fast. Okay, Professor Epps, I want you to be our left wing lunatic. Not sure I can live up to that job description. Well, do your best. Shouldn't you be thrilled? OMG, the right is loving substantive due process. And it's not like fundamental rights of parents, I think offends anyone on the left, per se. That probably is sort of one of those clear substantive due process issues. So like today should be the happiest day of your life. Well, I don't want to go in the record as this, you know, fierce defender of substantive due process. And I will say, you know, the result in Mirabelli strikes me as somewhat reasonable. I mean, the policy that was at issue strikes me as quite problematic. My objection, I guess, is sort of in the way the court handled the issues and the way it seems to create the impression if nothing else that it's being inconsistent. Because I think that in and of itself is a problem, right?

30:19You know, the court should not want people to think it's acting in an unprincipled fashion. And if you compare, you know, the analysis in Mirabelli on the substantive due process issue, although it doesn't, doesn't call it substantive due process. It just says on due process grounds, it's a paragraph. It's about four or five sentences, you know, very brief, leaves a lot of questions in its wake. And I found it a little bit hard to square with the, you know, really lengthy, very history focused approach that majority opinion in dobs lays out. And with the skepticism towards the whole doctrine that just as Thomas laid out in the concurrence to that decision, you know, previously you had asked me before offline about Skirmetti, which is, you know, the case, you ended up being an equal protection case about law, you know, banning certain medical procedures for transgender youth. I mean, I thought it was interesting that in that case, you know, there was a substantive due process issue raised at the petition stage and the court didn't even want to consider it.

31:25Now, I'm, you know, all the more curious why, why not at least accept the argument on that issue and just tell us a little bit more. You know, here in Mirabelli, I mean, the analysis is very brief and it doesn't seem to, you know, look back hundreds of years. It sites some 20th century case law and why not take a similar approach as in dobs. So can I stand in for a minute for the audience who might be saying, why does all this matter so much if it's between substantive due process and privilege or immunities or equal protection. What we're talking about is discovering and trying to determine which rights are unenumerated rights, which ones. And if at the end of the day, you say, well, we have a burger fell, but it's under privileges or immunities and equal protection and not substantive due process is that a distinction without a difference. I mean, one of the things that I thought was fascinating about, you know, the Thomas concurrence and dobs is he was beating sort of this hobby horse about privileges or immunities.

32:28And I guess at the end of the day, the question that I have, why does it matter if we locate unenumerated rights in religious or immunities or substantive due process or say 9th amendment, the different places in which we can locate it. Isn't it the kind of the same analysis either way, in other words, what's implicit in the concept of ordered liberty, what's a long standing recognized right that existed, say at the time of the founding or the ratification of 14th amendment. Isn't that what we're basically doing and then attaching a label to that, attaching a set of words to that. Oh, two points. One, I think it's always had advantages if what the court does can be connected to the Constitution in a democratic society, it's very nice for ordinary people to understand what is being done.

33:28At least in theory in the name of the Constitution, I think it's an advantage if an 8th grader can look at the thing and actually not say, I thought substance was the opposite of process, which an 8th grader might do or 12th grader. I know I did in my first semester of law school, I read Roe versus Wade, and I thought I was the idiot because everyone else was talking about this as if it was a thing, you know, and it was like the emperors, you know, new clothes, and I thought I was the only fool. No, it's Harry Blackman wasn't making sense fight. So it is an advantage in a democratic society for people to believe we have justification that the court when it says it's doing something in the name of the Constitution is actually doing something that plausibly is in the Constitution. So that's that's a general point, not about this specific issue. I think actually the rights to vote is better rooted in section two of the 14th amendment and the Republican government clause and gun rights are better rooted in 14th amendment and just in the second amendment generally individual rights. So that's just a method point.

34:34Now, the other point is I think that there is a there there with privileges or meetings, there's at least a core and then we can work out from the core and from that core there's actually an implicit method. The framers of the 14th amendment really did say that paradigmatic privileges or immunities included things that were fundamental and we could find evidence of fundamentality in canonical texts, for example practices. If something was mentioned in what we call the Bill of Rights, that's really strong evidence is fundamental. Ah, so freedom of speech, freedom of the press, free exercise of religion, right, I guess unreasonable searches or seizures. The fact that it's in the Constitution elsewhere is some evidence of fundamentality. If it's in a whole bunch of state constitutions, that's evidence of fundamentality. Now, what I just gave you is what lawyers call in fact incorporation states after the 14th amendment should enforce these fundamental rights, just as the federal government had been obliged to respect and enforce them.

35:43So because there's actually a core, we can then say, there's a method here and maybe even if it's not in the US Constitution, if it's in a whole bunch of state constitutions or in the Declaration of Independence, or American traditions and practices, or in what state after state after state actually does day after day after day. And that's at least now not making everything up, whereas because substantive due process is, I would say literally almost a contradiction in terms, will I think was a math major undergrad? One of the first things you learn in math is you can derive anything from a contradiction and because substantive due process, the paradigms are red, Scott and Lochner, well that's not the place I would begin. I just to amplify that a bit, I think I don't lose a lot of sleep over what part of the clause the court is citing, although it would be nice if they got it right. But the central problem in these cases is sort of the picking and choosing problem.

36:43Like if we don't agree with the court about this decision, how would we know whether or not we are wrong and they are right? And one nice thing about having a part of the Constitution with his own history to look at is then we know what to look at to figure out who's right and who's wrong. Andy, you're up. Yeah, so you're talking about a method of determining unnumerated rights. And so we should put that method to the test in specific cases. And I think Justice Kagan in her dissent tries to do that. Maybe you can talk well, talk about how you might apply the method to our challenge. So she says, given the court's last venture into the field, the field that meets you mean substantive due process, today's decision cannot but induce a strong sense of whiplash. Compare, auntie, so this decision, recognizing a parent's right to make important decisions about her child's health with dobs repudiating a woman's right to make important decisions about her own health. So, you know, I think that gets to the heart of her, at least part of her dissent.

37:46So how would you apply your method to that challenge? Way back when I wrote a chapter in a book called America's Unwritten Constitution, in which I said that Roe versus Wade not only was not textual because substantive due process, this is a contradiction. That it had no deep roots in American practice or in other canonical text, it the right of abortion as announced in Roe, the trimester regime was inconsistent with the laws of at least 49 states, maybe 50, only New York was Roe compliant. Whereas a proper approach to fundamental rights would say, well, if it's in the text, it's in the text and we enforce the text because it's in the text. If it's not in the text, we have to have some method for finding it. This is what Will says, you know, what are the rules for finding it and one obvious approach is look at actual practices.

38:51Well, Griswald in my view is easy. That was contraception in the home by Mary couples, 49 states recognize that and it always recognized that only Connecticut didn't. Connecticut was an outlier. Whereas in Roe, actually the trimester scheme was actually it was imposed on the states was the weird one was the outlier wasn't consistent with state practice. Now, what I just given you in the cases is Gluxberg, which was central to the dobs majority. It's a final point. Gluxberg said in order to find fundamental rights, one thing that we look at is actually state practices. Some people look to state practices in the past. That's more of a tradition approach. Other people look a little bit more to state practices today. More of a kind of consensus approach. But either way, counting is one permissible metric for trying to figure out, find the mentality. And I'm pro choice.

39:51My brother clerk for Harry Blackman who wrote Roe versus Wade, but wrote is not a good decision regardless of who wrote it. One other final way to put that point is when my party, the pro choice party, controlled the house and the Senate and the presidency in the first two years of the Biden administration, we couldn't even get a statute passed codifying the trimester regime or anything like that. And by the way, when just wrinkle on that, when I say I'm pro choice, I believe in women's rights and women's reproductive freedom. It does not mean that I don't value innocent and born human life. I value it deeply. It's just I don't trust the government very much. I don't trust the pambandis of the world and the Ted Cruz is the world on prosecutors or hammers who are looking for for nails to pound for their own political advantage. And women aren't perfect, but I tend to trust women more than the government when dealing with very complex personal and medical issues. And I hope many of them choose life, in fact. Now the professor of Mar has said that women aren't perfect. I think we've we've fixed everything.

40:56Wilboad, I want to follow up on this. What I'm going to call the scrimmety problem because it seems to me that what you guys are describing is this very idealistic form of substantive due process that I like. But punchline that I don't think the court has been doing. So if we use dobs, scrimmety, and this bond to case, for instance, dobs seems quite easy to me. We would apply substantive due process and say, but there is no history, fundamentalness to the right to abortion and therefore it fails substantive due process. And so now we move on to the starry decisis factors and we're off to the races and you get dobs. You get the same outcome. And then here in Bonta, we would say we apply substantive due process. Look at that. There is a fundamental right to have control over raising your children. And so this fits substantive due process. And when you get to scrimmety, you should be somewhere in the middle. You should apply substantive due process.

41:58It probably should be pretty hard because we do have some parent rights in this case, at least potentially, about the ability to direct the medical care that would otherwise be legal for your child. Yada, yada, yada, we don't need to revisit all of scrimmety. And the court doesn't mention it at all. And I guess my problem, Wilboad, the Paul McCartney of Chicago, at least that's what the law students tell me. They follow you around screaming, girls are fainting, et cetera. If they were being consistent, I guess I wanted to see a lot more conversation applying substantive due process in those other contexts. Before we ever get to Bonta and all of a sudden, we're like, yeah, substantive due process has been fine this whole time. There's a great reason why it didn't win the day in dobs. And I'm like, yeah, but boy, we didn't talk about it a lot. We certainly weren't saying we were doing substantive due process and it failed that process. Yeah, so I think you might have been too quick, even to nice to the court to say that you could easily reconcile dobs and Bonta on sort of history and tradition grounds.

43:02Because one of the big problems the court confronted is what you might call the level of generality problem. If you ask at a high level of generality, do parents have a right to control the upbringing of their children? Sure. If you ask at a narrow level of generality, do women have a right to abortion in X weeks of pregnancy? The answer might be no. But you know, you could think of row as a parent's rights case and you could say do parents have the right to control the upbringing of their children? Well, that's sort of what the punitive parents and row are doing in one sense. Good ask at a narrow sense. Do parents in California have a right to phone calls from teachers about facts about their children and their children not wish to disclose to them? Certainly that right doesn't seem so deeply rooted. And you know, there are actually answers in the cases about how to handle this. Just a Scalia famously said, you should look at the lowest possible level of generality supported by his tradition to avoid judicial discretion. That instruction has disappeared from Bonta. Now, maybe just a Scalia said that because he thought substance deprocess was a contradiction in terms that made up. So he just wanted to come up with any doctrine that would make substance deprocess as small as possible. I'm not sure.

44:03But already, we've got to kind of how do we decide what level of generality to use problem? And of course, this isn't what happened in Scrimetti. Scrimetti is a case about the right of parents to control the upbringing of their children with respect to gender transitions. The same question is in Bonta, so it should come out the same way. Or is it a case about the right to give your children illegal drugs and illegal medical treatments, which case is more like row? I don't know, because these things are manipulable. One thing that makes it worse, I guess, is this is partly exacerbated by the fact that the court gets to decide what issues to take, when to take them, and how serious they consider them. So the court just decided not to grant certain Scrimetti, so they just don't have to answer the question. The court decided to grant certain doves, so they get to answer the question. The court decided to not grant certain but answer the question anyway in Bonta on the interim docket, so they get to kind of answer the question. They get to settle like half-ass the answer to the question. Tell us the part they want to tell us, but then when we complain that it's not a very good answer, they're like, well, it's just the emergency docket. That's just a feature of the court's discretionary docket, but these cases really bring home how troubling the consequences can be.

45:07So Dan, I have a question for you. I want you to tell me if I have led an audience astray. And this is the story I've told a couple of times on advisory opinions, but it's right after dobs has decided I'm flying into a conference for the conference organizers realize that the opening panel, which is about dobs, doesn't have a pro life voice in it. So they need to add a pro lifeer. I'm the late addition. And it was very interesting. The crowd was very, very curious and inquisitive. There's a very, very liberal crowd, very much not on my side. They were interested in me explaining the dobs reasoning, but when they got vocally angry at me, I mean, like shouting at me from the crowd is when I said, however you want to read the Thomas concurrence, whether or not it's ultimately 10 years from now, whether it's still there under substantive process or it's there under privileges or immunities, you're still going to have Obergefell. You're still going to have loving. You're still going to have a lot of the existing substantive due process precedent. It just might be relabeled.

46:13Did I lead them astray? Were they right to shout at me that I was being too naive? I don't think so. I mean, I think, you know, there's two questions. One is, if you follow the court's reasoning all the way down, would it actually threaten those precedents maybe? And then the other is, you know, kind of relates to a point will just made, which is they don't have to decide what they don't want to decide. And I guess I don't see a lot of impetus among the majority to say reconsider a Obergefell. I think that would, you know, I think that would be pretty unpopular. And I think, you know, I tend to think that the both the conservative majority, at least some of them and, you know, America in general would not be as worked up about that because the issue has become a little bit less divisive. Then abortion has been so I guess I don't really see them coming back to those. I met Ed that, you know, on our podcast, one of the things Achille likes to do is sort of, you know, court watching. And we actually took this on at the time that the of of dobs and Achille predicted that these opinions would remain intact.

47:19And he said why he thought so and that sort of thing. And we actually in our fifth anniversary episodes, we kind of look back and say, OK, what predictions do we make? And, you know, when we took it on the chin for our for Trumpers Anderson and that sort of thing, but we said that here, you all impose accountability. We make all sorts of predictions and basically never revisit them. We kind of forget what we said. So no one can sometimes the listeners should have hold us accountable, but usually not. Well, this connects David to what you asked earlier, which is like, why does the rationale matter? And for lots of ordinary Americans, it doesn't. They just look at bottom line results, but we nerds, you know, care about the reasons given. And I thought the reasons and dobs were completely consistent with the best understanding of of what the rationale, if not was, should have been in Obergefeld and Griswald and loving. So just on Obergefeld, I think that people are born equal. That's the name of my new book, we're born equal, black or white, male or female, gay or straight.

48:24And if straights can marry and people with people who are born straight, can marry people or born gay should be allowed to marry. And that's a good fun. And even if you didn't agree with me on that, if everyone can get married in Niagara Falls or a Yosemite, no matter where you're from, it's going to be a little weird. And Will has written about this road about this long ago, if those marriages aren't given full faith and credit in all the other states, even if the people who got married in Niagara Falls or Yosemite were actually out of stateers. So I thought Obergefeld is rock solid and Griswald, wow, that was a weird state law that no one else was following. And so just on tradition and consensus grounds, Griswald was obviously brightly decided and loving versus Virginia was race discrimination and also outlier state. So if you took seriously, Gluck's bird and equality, I thought Dobbs was plausible and and Obergefeld is rock solid and Griswald is rock solid and loving is rock solid.

49:26And Laura's versus Texas for that matter, if straight people can engage in sexual activity, so can people who are born gay. So the rationales matter, the court itself said this opinion in Dobbs isn't going to bleed into other situations that they said that specifically. And I took Sam Alito at his word and I took him at his word in part because I thought the logic of his position did not remotely entail threats to those others. Dan Epps, really the Ringo star of Washington University. What's the future of substantive due process? Are we just never going to hear about this again? Are we going to hear a lot more about it? Because it does seem like the court, I don't know, we're going to have to either build out text history and tradition, we're going to have to do something about unenumerated rights. Like this is going to keep coming back, whether it's in the context of rights for people who identify as transgender versus the rights of women athletes type thing or in the abortion law context.

50:32Although things that I don't think any of us predicted well, correct me if I'm wrong. The total dearth of abortion from the political conversation here in 2026. How quickly states actually became political actors again and did things that weren't crazy unpopular slash potentially unconstitutional in their own states. We just have not seen that rush, I think, of cases to the court that I thought we would see Dan Epps, what's the future of substantive due process? So I'd like to think that my podcast and contributions are higher quality than yellow submarine, but I think this can't be the end of it. I mean, obviously, we now see there is a majority of the court that is potentially willing to extend substantive due process to at least a specific fact pattern to which it had not been extended. And I don't see any reason to think that this is the last time they'll ever be willing to do that. I don't know exactly where. I mean, I do think that we're continuing to see a lot of battle lines being drawn between red and blue states on transgender related transgender adjacent issues and it strikes me as quite plausible.

51:44Another one, you know, will reach the court eventually. And I think that, you know, if the court just wanted to completely shut those issues off, it could have said nothing. It could have just rested, you know, it's holding on free exercise clause and that would have limited the class of parents to which to whom are entitled to relief. But, you know, I think there's clearly at least a little bit of appetite. A once-monthly treatment for moderate to severe eczema. After an initial four-month or longer dosing phase, about four and ten people taking eczema, achieved itch relief and glare are almost glare skin at 16 weeks. And most of those people maintain skin that's still more glare at one year with monthly dosing. Eczema, Libri Kizumap, LBKZ, a 250-mg per 2-mL injection is a prescription medicine used to treat adults and children 12 years of age and older who weigh at least 88 pounds or 40 kilograms with moderate to severe eczema. Also called atopic dermatitis that is not well controlled with prescription therapies used on the skin or topicals or who cannot use topical therapies.

52:46Eczema can be used with or without topical corticosteroids. Don't use if you're allergic to Eczema. Allergic reactions can occur that can be severe. I problems can occur. Tell your doctor if you have new or worsening eye problems. You should not receive a live vaccine when treated with Eczema. Before starting Eczema, tell your doctor if you have a parasitic infection. Ask your doctor about Eczema and visit Eczema.ly.com or call 1-800-LilyRX or 1-800-545-5979. During Lowe's pro-saving days, save more on what goes into the job. Add power to your lineup with a free to walk 20 volt max 5 amp hour battery when you buy a select to walk 20 volt max tool. Plus, get up to 35% off, select major appliances for whirlpool, maytag, and more. Get the job done right. Keep more in your pocket. That's pro-saving's days. Our best lineup is here at Lowe's. Valid through 327. Selection bears. Valocation. All supplies last. Can we talk interim slash emergency slash David French actually had someone in a law review article.

53:47Two professors call it the equity docket and he got a citation in footnote 14. Was it David? I'm sitting on a throne of skulls right now. I can play a complete and total victory in the war over the naming because a larvae article has made my case for me. So I'm spiking the football. I'm doing the in-zone dance, whatever you want to say. David, I'm actually going to start with you on this one. Is it a problem that this was an interim docket case? Yes. I think it was. I mean, we talked about this in our podcast last week. But I think you're at a point where what you had here was a case that might have been 9081 on the merits. But now a lot of that merits discussion is obscured by the discussion over the timing was this the right time. And also obscured by the fact that it's also obvious that a lot of members of the court right now do not want to be doing all this emergency docket stuff.

54:48And yet they feel as if they have to to some degree, which then raises, you know, to go back to professor Mars come in about about, you know, or average ordinary person trying to figure this out, you know, if an eighth graders reading it and says substantive and process or something wrong here. If you're saying, well, some cases for emergency docket, some cases not for emergency docket, we overall don't like the emergency docket. What are the criteria that we're using to describe what is going to raise to that level versus what is not? And so, you know, it seems to me it would have been quite expeditious and unreasonable to convert the motion to a certain petition and then resolve it. During the term, but yeah, I feel like when you have a case where the merits seem very clear, the timing seems very suspect. It seems quite prudent if you can do it expeditiously to just mainstream this, put it into the into the normal course of business.

55:55Achille Readamar, I have not heard you give me your fix solution to the interim docket and I just I know you have one share it with the world. I don't. Oh, you're going to continue to hide it from us. Fine. I'm very proud that will named it. Um, and he's one of my favorite students of all time and and he was very gracious. He let another one of my star students use it to make a lot of money off of it in a book called the shadow docket, Steve Laddick. When I read Will, when he's chatting with other folks with Steve Laddick and Kate Shaw, you know, in a disreputable publication that has some connections there to. And you like you and David have published in there on more than one occasion, the New York Times. I tend to be pretty sympathetic to Will's point of view that this shadow docket sounds like it's vaguely disrepidable.

56:56It's like dark money, you know, well, it's just money, you know, in anonymous speeches, you know, not so bad. We, you know, the poopliest was anonymous. So shadow docket. Oh, it sounds, you know, a faintly disrepidable. But sometimes the court is going to need to hop in and figure out what should be the status quo. Pendently. While, you know, cases are sort of bubbling up and I don't think it's preposterous when you're trying to do things in the interim. As a first cut, pay a lot of attention to what results you think is likely to be correct. And especially when you're not looking at the issue for the first time, you've seen the issue in earlier cases after full deliberation in in previous adjudications. So the specific issue maybe hasn't come before you, but similar things have and you thought about them. And you're damned if you do and damned if you don't, if you actually start to give any reasons at all, then people say, oh, you're locking yourself in.

58:00And if you don't give any reasons at all, they say, oh, you haven't given any reasons. And I remember a liberal, and this is a conservative court, the court itself didn't create this problem. I think the problem is created largely because there's a bit of a divergence between the median judge on lower courts on the left right continuum and the median justice. It's also exacerbated by forum shopping where when you have a conservative president, plaintiffs go to liberal district judges and vice versa when the political situation is flipped around. So you're likely to get divergences between the lower court ruling and the likely Supreme Court ruling because not all lower court judges are really trying to pay attention to what the Supreme Court really wants to do. And this is further exacerbated when the Supreme Court is moving the law to some extent, which is often, you know, what happens, law, law, law moves when it's revisiting old precedents and lower courts who are hostile to that likely drift, pretend as if the drift isn't occurring and start citing old cases rather than paying close attention to the court's more recent movement and the clues and the cues that the moderate court.

59:15So when I read the New York Times and read will and conversation, especially with Steve loud about this, I often find myself very sympathetic to Will's point of view. Yeah, there's an article on on scotas blog actually from a couple days ago by Stephanie Barkley called the emergency dockets critics have it backwards, which analyzes a bunch of these issues. And, you know, points out, you know, just as things just as Kagan is complaining about in this case, you know, are things that she took the opposite position on and maybe quite rightly. Many people that have been frustrated with the judicial process can kind of identify with this sentence from the precurium, the denial of plaintiffs constitutional rights during the potentially protracted appellate process constitutes irreparable harm. How many times do we as ordinary citizens get frustrated with how long it takes to figure out that someone put classified dockets on top of their toilet?

1:00:16I'm sorry. And yet, you know, the clock runs out. So, you know, I think these are things that we can identify with. So, yes, the shadow docket, I mean, it can be frustrating, but perhaps the necessary. I know I know I know one who always has the court is great and fine and Hogi Dori, but I do think one thing that's changed a little bit and is sort of the court's doing is it used to be the court was much better at saying we are not a court of error correction. Like, I'm very sorry that happened to you. It sounds very unconstitutional and I'm sorry that I didn't do anything about it, but we're just not a court of error correction. And they used to be better at like believing that. So, if there are a bunch of news stories about how there was this terrible travesty that someone constitutional thing that happened somewhere in the world, they didn't think like it's our fault for not doing it. And at some point, they will stop saying it is often and they stop believing it. And so now, when a terrible travesty happens in the court doesn't intervene, we do draw the inference that the court must be kind of okay with it because they intervene all the time. And that's just a shift in equilibrium. If they're happy with it, he gives them a lot more power.

1:01:18I guess it leads to a lot more justice in the world if you agree with the justices. But there is this question, like, is that a sustainable job for nine people to Supreme Court who are trying to do a lot of other things at the same time to be the kind of the nation's constitutional error correction of last resort? Anybody who has something terribly unconstitutional happened in them for a couple of years gets the court's attention? Note that the Warren Court did that error correction very famously in certain situations. You know, Gideon might even have been one of them initially. So that is a kind of a Warren court move that maybe then lapsed and the war court was trying to move the law to the left. This court is trying to move the law, I think, generally to the right. So an interesting point will last word to you, Dan Epps. We have seen a lowering of the number of cases on the emergency interim docket. Those that we have seen are taking longer to come out. This one was months two and a half months or so until we got an answer.

1:02:19Where are you in all of this? Is this now just become error correction? Or I am sympathetic to the idea that actually I'm sympathetic to both the ideas that they're doing error correction while at the same time taking fewer and fewer merits cases, which is a bit baffling. And that a lot of this is forum shopping problems. Something, by the way, is actually not that hard to fix if we all wanted to fix it. And so what you have are, you know, sort of sometimes bonkers town district courts that the court then feels the need to step in and deal with because they are the outliers in a post filibuster very in the middle of forum shopping world that we live in. Who's right? Well, there's a lot there. And I don't think there's a one quick answer to who's right. I think the court clearly is doing a certain amount of error correction. And when you examine that, it kind of opens itself up to the criticism of why only these cases, why only these types of petitioners or applicants and not others.

1:03:23In terms of the merits cases, you know, certainly fewer there. I think there's a lot of the kind of pedestrian circuit split statuary cases that court probably could be taking, but is choosing not to. And it seems to be, you know, because they're spending more time, you know, potentially because they're spending more time when the interim orders. And then when they do have merits cases, big merits cases, everybody wants to write and they take way too many pages. You know, I think, um, friend of, uh, friend of everybody, Richard Ray noted, you know, uh, do we really need, after the tariff decision, do we really need concurrences, responding to concurrences, responding to concurrences. And I'm really not convinced that the answer to that question is yes. Thank you. Andy Lipka, Akiel Rita-Mar, Dan Epps and Will Bowd for joining us. David French, I can already feel how upset you are about the beetle stuff. It's so, so upset. I, well, you know, this goes back to a long running feud I had with my old in our colleague, Charlie Cook, because he loved him some beetles loves the beetles.

1:04:30And I would constantly troll him in National Review Slack, where I would say if you give me a choice between listening to any beetle song or the Bon Jovi song of my choice, I'm going with Bon Jovi every time, which is a maybe a little bit much there. You know, music is a thing that's very subjective. I know there's a lot of objective elements to it, but I've just never gotten it. I'm with you. I'm more on the Beach Boys side of the house and that, and that era. I am more than willing to acknowledge that the beetles started something and that you have a lot of other bands that built on what the beetles start. Like, I'm willing to acknowledge their historical significance. Yes. But, like, maybe I think this is a more apt comparison. I would much rather listen to Radiohead, which I think actually did build on the beetles, but it's better. Like, lots of shows built on the sopranos. I don't think the sopranos is that good anymore. I think all the shows that have built on it were really great. By the way, David, speaking of shows, I think I have a new one that you haven't watched yet. Oh, do tell. And you're going to love it in my new favorite show in a long time, actually.

1:05:34You know how wide open I am to streaming recommendations, and then I've got one in response. Amazon Prime Video. Guy Richie's Young Sherlock. I've been curious. It's great. I don't mean, like, it's all the things, right? It's like a Guy Richie movie, but it's broken up into eight shows. This is not going to change your life. It's just great TV. Oh, okay. That's a great recommendation. I've got one back at you. Blue lights. Three rookie cops. Belfast, Northern Ireland. Mayhem and Seuss. Like, I knew from the beginning this was going to be a different kind of show because the cop at the very beginning, she's got a gun. Like, wait a minute. I thought this was great. I thought this was the United Kingdom, but no, this is Belfast. Hardcore, Sarah. This is hardcore stuff. Very good. All right. Next time on Advisory Opinions, we're going to talk about Pung, my sleeper case for the whole term.

1:06:35It really, I think, is going to be my favorite case of the term. So get excited for fifth amendment taking. Okay.