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A
Ready?
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B
I was born ready.
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A
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 America's Constitution with Andy Lipka and Akhil Rita Marr and Divided Argument with Will Bode 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? It's crunch time at work and you need to bring wings to your workday. Visit redbull.com gettingitdone 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. Terms apply. 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, the one that 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've 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 1 and March 17, 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. Really fun Supreme Court cases that have some tie to their hometown. And if we hit $7,500, and we are, David, 2/3 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.
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C
I have confidence, Sarah. The people demand more Chris Christie. And so this is completely in the people's hands if 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.
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A
We're sorry, Justices Gorsuch and Briar. I know justice merit, I know it's
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C
crazy, but Chris Christie is number one in the in the guest rankings, which is kind of a 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 in trying to identify the identities of the people on the in the conversation and way too little Avengers talk because this is more like a crossover type episode. So. 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.
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A
One 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 Bebas 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 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 Mirabelli vs. 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. So 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 Ninth Circuit said, yes, it could. And the Supreme Court 6 to 3 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 8:1 or 9:0 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 per curiam 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 Justices Thomas and Alito noted that they would grant the application in full. We did not hear from Justice Gorsuch at all. So 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 zero 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?
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C
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 in 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, sort of. 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. But the problem here is that that's just not how constitutional rights work. You 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, 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 per curiam 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 Mahmoud 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. That was decided on free exercise grounds. But the per curiam 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 y' all listening to it.
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A
Here are the cases that I think it would be helpful to have handy in your brain before we start this conversation. One, 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 Bona Banta because we take the. The non public official who's getting, you know, 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 AG 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 Scremetti. David, you and I have a whole episode on this case. And in fact, we have an interview with Jonathan Scrametti, 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. And then, David, the last case that I think would be helpful for people to know is Glucksberg. 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 Griswold v. Connecticut, which is on birth control, you'll even hear a Lawrence v. Texas, which is. Which is the case about the Texas law that banned sodomy. Criminalized sodomy. 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. And so without further ado, let us introduce our new SCOTUS blog podcast, Extended Universe. Let's start with America's Constitution. Andy Lipka, I'm coming to you first. You are the host of this podcast. Describe it for us.
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B
The Idea started around 2016 because Akhil and I did a program together where he taught a whole bunch of people about the Civil War era and so forth. And Afterwards, I was talking to him about his kind of his project, what is he aiming for with his life? And 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 it when I read his stuff. And 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? You know, look, I was in awe of the great man, so I was deferential to him. So I explained what it was and told him, you know, and said, well, 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, 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 by week. And 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, 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 Whalen and kind of the, the journalism area to Justice Breyer and Jamie Raskin and Maggie Goodlander and plus legal experts like Will Bode and Mike Paulson and many others. So that's happened. And so week by week, I'm kind of a stand in for the audience asking questions about things that people that are interested in the Constitution, but not necessarily deeply knowledgeable about it might ask. And then Akhil answers it from the point of view of someone that does know a lot about the Constitution. So I think we've managed to hit both those audiences in our podcast, even as he does in his, in his work.
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A
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 guess to the news of the day?
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D
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 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, you know, the fifth Beatle, the producer there, really isn't quite the Beatles. And Andy Lipka is my George Martin.
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A
And that makes you Ringo, Paul. It's all everyone. You're all of them.
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D
Well, they said that, you know, they said that John was the mind and Paul was the heart and George was the soul and Ringo was the drummer. So you decide.
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A
Okay, we're gonna. We're going to touch on some of the substance that y' all do on America's Constitution in a little bit. But next up, we have Divided Argument, the podcast with professor from University of Chicago, Will Bode and professor from Washington University, Dan Epps. Y' all 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.
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E
So we describe ourselves as an unscheduled, unpredictable Supreme Court podcast. And you asked me before we started recording to kind of say who might want to listen to the show. I 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 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 commentariat. And that means often choosing some of the kind of nerdier fed courts type cases. We talk about the kind of big picture social issues, blockbuster cases, some, but we tend to try to zero in on areas of those cases where we can say something that's maybe different.
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A
Professor Bodega, do your law students listen to Divided Argument and what percentage of it do they follow along with?
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F
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 University of Chicago last week, and we filled the classroom, so we seem to have a lot of listeners. Somebody who's even there in the divided argument shirt asked a question on the air. If there is 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 legal there. But that hopefully is relevant and interesting and 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, not always different, but come at 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 is gonna be a little more subversive than I would have thought it should be, but there you go.
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A
Yeah, it's weird because I think the premise, in some ways was to have someone, you know, from the left and the right, but of good faith, talk about these cases. But I feel like listening to it. Y' all don't actually disagree wildly over. Over cases. Y' all 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.
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E
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 they're. 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.
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A
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, and 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 and the best way to phrase this question to him.
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D
While Andy is thinking, there was a law law student skit many years ago featuring me and my brother Vic as characters. It was Rain man. And Vic, by the way, is on our podcast all the time. And 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, so Andy, I guess is. Is now Tom Cruise as everyone has
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A
always compared him to. And you and your brother write a great column for SCOTUS blog that the, the columns y' all have been writing recently. Diving into some of the amici on birthright citizenship has been really great. Super helpful for me, by the way, as we build up to the birthright citizenship argument. Andy, I'm looking at you now.
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B
Okay, so Akhil Justice Barrett writes a concurrence in this opinion and she starts off basically by saying that substantive due process is a controversial doctrine. She says 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. So can you make some sense of that?
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D
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. So I'm basically with John Hard Ely, a very great law professor who said that substantive due process seems almost a contradiction in terms, an oxymoron. But John Ely says, and I'm with him, not to worry, because even if we 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. It 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. And 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.
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B
And of course, Justice Barrett then asked that question herself, and then goes on to answer it part by referring to the Glucksberg case. But before we discuss that, you're referring to their Section 1 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 not be denied to any person within jurisdiction. But 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?
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D
You're right, Andy. See, 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 substantive due process and privileges or immunities. And I think a difference might very well be how we think about non citizens that would 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 immunity is, I claim, most many of the results that were sensible if labeled substantive due process would be sensible if labeled privileges or immunities. But there might be some differences when it comes to certain applications, especially for non citizens, that quintessentially aliens.
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A
Okay, Professor Bodega, this seems totally insane to me. Again, forget the case. Forget Banta 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?
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F
Still, the day has not yet come when the Court has recognized that these slaughterhouse cases were wrongly decided and that it should re recognize the religious or immunity systems in the United States. That day 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 Antonin 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 Warren Court was doing and the Burger Court. And it is true that now that those justices are in power, they are doing the things the Warren Court and the Burger Court were doing. Sometimes different, sometimes better, sometimes frankly worse. Friend of many of these podcasts, Richard Ray, has written about this in a couple contexts, calling it 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. And there are defenses of what they are doing that we can talk about on the basis of precedent. But in a sense this is predictable. But I did not think it was going to happen so fast.
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A
Okay, Professor Epps, I want you to be our left wing lunatic.
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E
Not sure I can live up to that job description.
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A
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.
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E
Well, I don't want to go in the record as this fierce defender of substantive due process. And I will say 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, right. You 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 really lengthy, very history focused approach that the majority opinion in Dobbs lays out and with the skepticism towards the whole doctrine that Justice Thomas laid out in the concurrence to that decision. Previously you had asked me offline about Scarmetti, which is the case. It ended up being an equal protection case about a law banning certain medical procedures for transgender youth. 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. Now 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, the analysis is very brief and it doesn't seem to, you know, look back hundreds of years. It cites some 20th century case law and why not take a similar approach as in Dobbs?
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C
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 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 Obergefell, 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, the Thomas concurrence and Dobbs is he was beating sort of this hobby horse about privileges or immunities. And I guess at the end of the day, the question that I have, why does it matter if we locate unenumerated rights in privileges or immunities or substitute to process or say ninth Amendment, the, the different way 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, a long standing recognized right that existed, say at the time of the founding or the ratification, the 14th amendment? Isn't that what we're basically doing and then attaching a label to that attack, attaching a set of words to that.
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D
So two points. One, I think it's always advantageous 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, at least in theory, in the name of the Constitution. I think it's an advantage if an eighth grader can look at the thing and actually not say, huh, I thought substance was the opposite of process, which an 8th grader might do. Or a 12th grader. I know I did. In my first semester of law school, I read Roe vs 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 Emperor's New Clothes. And I thought I was the only fool. No, Harry Blackmun wasn't making sense. Bite. So it is an advantage in a democratic society for people to believe with 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 a general point, not about this specific issue. I think actually the rights to vote is better rooted in Section 2 of the 14th Amendment and the Republican government clause. And gun rights are better rooted in 14th amendment than just in the 2nd amendment, generally individualized. So that's just a method point. Now the other point is I think that there is a there there with privileges or immunities. 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. And in canonical texts, for example, in 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 against 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. If it's in the Declaration of Independence, that's evidence of fundamentality. Now what I just gave you is what lawyers call it, 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. So 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. 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 Dred, Scott, and Lochner. Well, that's not the place I would begin.
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F
I say 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'd be nice if they got it right. But the central problem in these cases is sort of the picking and choosing problem. Like, 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 its own history to look at is then we know what to look at to figure out who's right and who's wrong.
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C
Andy, you're up.
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B
Yeah. So you're talking about a method of determining enumerated 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 her challenge. So she says, given the Court's last venture into the field, the field that she means 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 Dobbs 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, of at least part of her dissent. So how would you apply your method to that challenge?
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D
Way back when, I wrote a chapter in a book called America's Unwritten Constitution, in which I said that Roe vs. Wade not only was not textual, because substantive due process, this is a contradiction, but it had no deep roots in American practice or in other canonical texts. It the right of the 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. Now Griswold, in my view is easy. That was contraception in the home by married couples. 49 states recognized 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 Glucksburg, which was central to the Dobbs majority. Final point. Glucksberg 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 one permissible metric for trying to figure out fundamentality. And I'm pro choice. My brother clerked for Harry Blackmun who wrote Roe vs. 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 a trimester regime or anything like that. And by the way, one 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 unborn human life. I value it deeply. It's just I don't trust the government very much. I don't trust the Pam Bondies of the world and the Ted Cruz's the world prosecutors or hammers who are looking 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.
- [37:33]
A
In fact, now that Professor Amar has said that women aren't perfect, I think we've, we've fixed everything. Will bode. I want to follow up on this what I'm going to call the Scrametti 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 Dobbs Scrametti and this Bonta case, for instance, Dobbs 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 stare decisis factors, and we're off to the races, and you get DOBs, you get the same outcome. And then here in Banta, 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 Scremetti, you should be somewhere in the middle. You should apply substantive due process. It 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 Scrametti, and the court doesn't mention it at all. And I guess my problem will Bode the Paul McCartney of Chicago. 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 Banta. And all of a sudden we're like, yeah, yeah, substantive due process has been fine this whole time. There's a great reason why it didn't, you know, win the day in Dobbs. 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.
- [39:38]
F
Yeah. So I think you might have been too quick, even too nice to the court to say that you could easily reconcile Dobbs and Banta on sort of history and tradition grounds. Because one of the big problems the court confronted is what you might call the level of generality problem. Right. 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 could think of Roe as a parents rights case, and you could say, do parents have the rights to control the upbringing of their children? Well, that's sort of what the putative parents in Roe are doing in one sense. You could ask, in a narrow sense, do parents in California have a right to phone calls from teachers about facts about their children that their children do not wish to disclose to them? Suddenly, that right doesn't seem so deeply rooted. And there are actually answers in the cases about how to handle this. Justice Scalia famously said you should look at the lowest possible level of generality. That's supported by string tradition to avoid judicial discretion. That instruction has disappeared from Banta. Now, maybe Justice Scalia said that because he thought substantive due process was a contradiction in terms and made up, so he just wanted to come up with any doctrine that would make substantive process as small as possible. I'm not sure, but already we've got a kind of how do we decide what level of generality to use problem. And of course, the same thing would happen in Skremetti. Is Schremetti a case about the right of parents to control the upbringing of their children with respect to gender transitions? The same question is in Banta, 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, in which case it's more like Roe, 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 seriously to consider them. So the court just decided not to grant certain Scrumetti, so they just don't have to answer the question. The court decided to grant certain Dobbs, so they get to answer the question. The court decided to not grant cert, but answer the question anyway in Banta on the interim docket. So they get to kind of answer the question. They get to sort of like half ask 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.
- [41:50]
C
So, Dan, I have a question for you. I want you to tell me if I have led an audience astray. And this is a story I've told a couple of times on advisory opinions, but it's right after Dobbs has decided. I'm flying into a conference where the conference organizers realized that the opening panel, which is about Dobbs, doesn't have a pro life voice in it, so they need to add a pro lifer. I'm the Late Edition. And it was very interesting. The crowd was very, very curious and. And inquisitive. It was a very Very liberal crowd, very much not on my side. They were interested in me explaining the Dobbs 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 substituted due 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. Did I lead them astray? Were they right to shout at me that I was being too naive?
- [43:00]
E
I don't think so. I mean, I think, you know, there's two questions, right? 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 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 than abortion has been. So I guess I don't really see them coming back to those.
- [43:47]
B
I might add that on our podcast, one of the things Akil likes to do is sort of court watching. And we actually took this on at the time of Dobbs and Akhil predicted that these opinions would remain intact. And 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, okay, what predictions did we make? And we took it on the chin for our, for Trump versus Anderson and that sort of thing.
- [44:17]
E
But we said that here you all impose accountability. We make all sorts of predictions and then basically never revisit them. We kind of forget what we said. So no one can. Sometimes the listeners try to hold us accountable, but usually not.
- [44:31]
D
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 nerd, you know, care about the reasons given. And I thought the reasons in dobbs were completely consistent with the best understanding of what the rationale if not was should have been in Obergefell and Griswold and Loving. So just on Obergefell, 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. And if straights can marry and people, people who are born straight can marry, people who are born gay should be allowed to marry. And that's a big fun. And even if you didn't agree with me on that, if everyone can get married in Niagara Falls or Yosemite, no matter where you're from, it's going to be a little weird. And Will has written about this, wrote 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 staters. So I thought Obergefell just Rock Sol and Griswold. Wow, that was a weird state law that no one else was following. And so just on tradition and consensus grounds, Griswold was obviously rightly decided and Loving versus Virginia was race discrimination and also outlier states. So if you took seriously Glucksberg and equality, I thought Dobbs was plausible. And Berger Feld is rock solid and Griswold is rock solid and Loving is rock solid. Lors 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. 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.
- [46:39]
A
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, you know, people who identify as transgender versus the rights of women athletes type thing, or in the abortion law context. Although 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, you know, 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?
- [47:46]
E
So I'd like to think that my podcasting contributions are higher quality than Yellow Submarine, but, you know, I think this can't be the end of it, right? 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, you know, transgender related, transgender adjacent issues. And it strikes me as quite plausible another one will reach the court eventually. And I think that if the court just wanted to completely shut those issues off, it could have said nothing. It could have just rested its holding on free exercise clause and that would have limited the class of parents to whom we're entitled to relief. But I think there's clearly at least a little bit of appetite Eczema as
- [48:53]
F
unpredictable, but you can flare less with
- [48:56]
A
epglis, a once monthly treatment for moderate to severe eczema. After an initial four month or longer dosing phase. About 4 in 10 people taking EBGLIS achieved itch relief and clear or almost clear skin at 16 weeks. And most of those people maintain skin that's still more clear at one year with monthly dosing.
- [49:11]
C
Hemplis Lebricizumab LBKZ, a 250 milligram per 2 milliliter injection, is a prescription medicine used to treat adults and children 12 years of age and older who weigh at least 88 lb pounds or 40 kg with moderate to severe eczema, also called atopic dermatitis, that is not well
- [49:25]
F
controlled with prescription therapies used on the
- [49:26]
C
skin or topicals or who cannot use topical therapies. Eglis can be used with or without topical corticosteroids. Don't use if you are allergic to ebglis. Allergic reactions can occur that can be severe eye problems can occur. Tell your doctor if you have new or worsening eye problems. You should not receive a live vaccine when treated with Eglis before starting EBGLIS
- [49:43]
F
tell your doctor if you have a parasitic infection.
- [49:45]
A
Ask your doctor about Ebglis and visit epglis Lilly.com or call 1-800-LillyRx or 1-800-545-5979. Can we talk interim slash emergency slash. David French actually had someone in a law review article, two professors call it the equity docket, and he got a citation in footnote 14. Was it?
- [50:07]
C
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 law review article has made my case for me. So I'm spiking the football. I'm doing the end zone dance, whatever you want to say.
- [50:22]
A
David, I'm actually going to start with you on this one. Is it a problem that this was an interim docket case?
- [50:29]
C
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 nine 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. And yet they feel as if they have to to some degree, which then raises, you know, to go back to Professor Amar's comment about, about, you know, the average ordinary person trying to figure this out. You know, if an eighth grader's 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 reasonable 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, just mainstream this, put it into, into the normal course of business.
- [52:08]
A
Akhil Riedemar, 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.
- [52:19]
D
I don't.
- [52:20]
A
Oh, you're gonna continue to hide it from us? Fine.
- [52:23]
D
I'm very Proud that Will named it. And he's one of my favorite students of all time and he was very gracious. He let another one of my stars students use it to make a lot of money off of it in a book called the Shadow Docket. Steve ladock, when I read Will, when he's chatting with other folks with Steve Vladic and Kate Shaw, you know, in a disreputable publication that has some connections there, and 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 disreputable. It's like dark money, you know. Well, it's just money. You know, an anonymous speech is, you know, not so bad. You know, the Publius was anonymous. So shadow docket. Oh, it sounds, you know, faintly disreputable. But sometimes the court is going to need to hop in and figure out what should be the status quo. Pendant Lite while 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 result 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 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. And 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. What happens 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 modern courts give. So when I read the New York Times and read Will in conversation, especially with Steve Laddup on this, I often find myself very sympathetic to Will's point of view.
- [55:38]
B
There's an article on Skoda's blog, actually, from a couple days ago by Stephanie Barkley called the Emergency Docket's Critics have It Backwards, which analyzes a bunch of these issues and points out things Justice Kagan is complaining about in this case 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 per curiam. 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? I'm sorry. And yet the clock runs out. So I think these are things that we can identify with. So, yes, the shadow docket, I mean, it can be frustrating, but perhaps necessary.
- [56:42]
F
I know I'm the one who always says the court is great and fine and hunky dory, 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. I'm very sorry that happened to you. It sounds very unconstitutional, and I'm sorry the 9th Circuit didn't do anything about it. But we're just not a court of error correction. And they used to be better at believing that. So that if there are a bunch of news stories about how there was this terrible travesty that some unconstitutional thing had happened somewhere in the world, they didn't think it's our fault for not doing it. And at some point, they both stopped saying it as often and they stopped believing it. And so now when a terrible travesty happens and 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, it gives them a lot more power. I 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 at the 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 happen to them for a couple years gets the court's attention.
- [57:50]
D
Note that the Warren Court did that error correction very famously in certain situations. Gideon might even have been one of them initially supposed to. So that is a kind of a Warren Court move that maybe then elapsed. And the Warren 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 interesting point.
- [58:12]
A
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. Where 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?
- [59:14]
E
Well, there's a lot there. And I don't think there's a, you know, one quick answer to who's right. I think the court 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, you know, in terms of the demerits cases, you know, certainly fewer there. I think there's a lot of the kind of pedestrian circuit split statutory cases the court probably could be taking but is choosing not to. And it seems to be a. Because they're spending more time potentially because they're spending more time on the interim orders. And then when they do have merits of cases, big merits cases everybody wants to write, and they take way too many pages. I think Friend of everybody, Richard Ray, noted. Do we really need, after the tariffs 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.
- [60:17]
A
Thank you, Andy Lipka, Akhil Rita Marr, Dan Epps and Will Bode for joining us. David French, I can already feel how upset you are about the Beatles stuff.
- [60:30]
C
It's so, so upset. Well, you know, this goes back to a long running feud I had with my old NR colleague Charlie Cook because he loved him. Some Beatles loves the Beatles. And I would constantly troll him in National Review Slack, where I would say, if you give me a choice between listening to any Beatles 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. In that era.
- [61:07]
A
I. I am more than willing to acknowledge that the Beatles started something and that you have a lot of other bands that built on what the Beatles start. Like, I'm willing to acknowledge their historical significance.
- [61:19]
C
Yes.
- [61:20]
A
But maybe. I think this is a more apt comparison. I would much rather listen to Radiohead, which I think actually did build on the Beatles, but it's better. Lots of shows built on the Sopranos. I don't think the Sopranos is that good anymore. I think. 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.
- [61:41]
C
Oh, do tell.
- [61:42]
A
And you're gonna love it.
- [61:44]
C
Okay.
- [61:44]
A
It's my new favorite show in a long time, actually.
- [61:49]
C
You know how wide open I am to streaming recommendations. And then I've got one in response.
- [61:55]
A
Amazon Prime Video. Guy Ritchie's Young Sherlock.
- [62:01]
C
I've been curious.
- [62:02]
A
It's great. I don't mean like. It's just. It's all the things, right? It's like a Guy Ritchie movie, but it's broken up into eight shows. This is not going to change your life. It's just great tv.
- [62:13]
C
Oh, okay. That's a great recommendation. I've got one back at you. Blue Lights. Three rookie cops. Belfast, Northern Ireland. Mayhem ensues. 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.
- [62:41]
A
All right, next time on advisory Opinions, we're going to talk about pung My sleeper case for the whole term. It really, I think, is going to be my favorite case of the term. So get excited for fifth Amendment takings,
- [62:56]
D
Sam.