Podcast Summary: "What Are the Liberties Not in the Constitution?"

Advisory Opinions (The Dispatch)
Date: March 10, 2026
Hosts: Sarah Isgur, David French
Guests: Akhil Reed Amar, Andy Lipka (America’s Constitution); Will Baude, Dan Epps (Divided Argument)

Episode Overview

This special crossover episode explores the origins, doctrine, and future of substantive due process: a contentious, much-debated constitutional concept at the heart of litigation over unenumerated liberties such as parental rights, abortion, and marriage. The hosts convene leading constitutional scholars and podcasters to unpack the Supreme Court’s handling of these issues in the recent Mirabelli v. Bonta case and beyond. The conversation also situates the current debates within broader historical, methodological, and case-specific frameworks, scrutinizing the legitimacy, consistency, and direction of substantive due process jurisprudence.

Key Discussion Points & Insights

1. Setting Up the Crossover and Recent Supreme Court Case

• The episode brings together hosts from three legal podcasts to discuss constitutional rights not expressly written in the Constitution, focusing on substantive due process.

• Mirabelli v. Bonta: At the center of the discussion is this case involving a California law that prevented teachers from notifying parents if a child was socially transitioning at school. The Supreme Court temporarily blocked enforcement as the case proceeds, raising issues of parental rights, process, and substantive rights.

  • [05:18] – Sarah Isgur: “This is about that Mirabelli vs. Bonta case... The teachers were not allowed under state law to share that information with parents. And this came on the Supreme Court's interim docket.”
  • The Court split 6-3 on the interim question. A per curiam opinion was joined by a concurrence from Justice Barrett and a dissent from Justice Kagan, with Justices Thomas and Alito signaling full support for the application.

2. Intro to Guest Podcasts

• America's Constitution (Andy Lipka & Akhil Amar): Explains its mission to make the Constitution approachable to both laypeople and legal elites, often bringing in renowned guests. Amar views the show as blending history, contemporary news, and doctrinal analysis.
  • [14:21] – Akhil Amar: “Andy Lipka is my George Martin.”
• Divided Argument (Will Baude & Dan Epps): Characterized as an “unscheduled, unpredictable Supreme Court podcast” focusing tightly on legal arguments, even in lower-profile cases.

3. Substantive Due Process – Origins, Alternatives, and Doctrine

• Justice Barrett's Concurrence: Identifies substantive due process as controversial, since it finds unenumerated rights within a clause about procedure (“due process”).
  • [20:38] – Akhil Amar: “Process in ordinary language means procedure, fair procedures like jury trials or... proof beyond a reasonable doubt, and substance is…almost a contradiction in terms, an oxymoron.”
• Alternatives in the Constitution: Amar points to the Ninth Amendment (for the federal government) and the Privileges or Immunities Clause (states) as better textual hooks for unenumerated rights.
  • [22:09] – Lipka & Amar: Discuss the doctrinal and practical consequences of rooting rights in different clauses, especially regarding citizens vs. “persons” and noncitizens.

4. Historical & Political Shifts in Substantive Due Process

• Conservative-Liberal Realignment:
  • Historically, substantive due process emerged from conservative judicial activism, was taken up by liberals in the 20th century, and vehemently critiqued by originalists. However, current conservative justices now invoke the doctrine in contexts like parental rights.
  • [24:59] – Will Baude: “It was predictable that once there was a conservative majority… they would not be as wedded to judicial restraint as they had been before.”

5. Consistency, Scope, and Method

• Level of Generality Problem: How broadly/narrowly courts define the “right” at issue directly affects whether it qualifies as “fundamental” and constitutionally protected.
  • [39:38] – Will Baude: “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… suddenly, that right doesn't seem so deeply rooted.”
  • Risk of manipulation and inconsistency arises whether in abortion (Dobbs), parental rights (Mirabelli), or gender-affirming care (Skarametti).
• Glucksberg & Precedent: Both Amar and others stress the Supreme Court’s “history and tradition” method for finding fundamental rights (from Washington v. Glucksberg), but note its limitations, especially how consistency is often lacking.

6. The Practical Stakes: Why Theory and Label Matter

• Transparency & Democracy: Amar argues the method matters for democratic legitimacy—that the rationale for rights should be understandable to ordinary people and rooted in text or history, not just judicial labeling.
  • [29:52] – Amar: “It's always advantageous if what the court does can be connected to the Constitution in a democratic society... 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.”
• Consequences for Past and Future Rights:

  • Debate over whether rights to same-sex marriage (Obergefell), contraception (Griswold), or interracial marriage (Loving) are actually threatened by the current Court’s rhetoric and methods. The consensus is “likely not,” but concern remains if only the labels change.

    • [44:30] – Amar: “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… I took Sam Alito at his word… the logic of his position did not remotely entail threats to those others.”

7. The Supreme Court’s Emergency Docket (Shadow Docket)

• Critique of issuing major decisions on interim/emergency dockets, which can obscure merits and rationale.

  • [50:29] – David French: “You had here 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… seems quite prudent if you can do it expeditiously to just mainstream this, put it into, into the normal course of business.”

• Forum Shopping & Error Correction:

  • The panel discusses how lower court forum shopping, combined with a shrinking merits docket and rising interim decisions, may distort the Court’s role—shifting it towards constitutional “error correction of last resort.”
    • [57:50] – Dan Epps: “There is this question: is that a sustainable job for nine people… to be the nation's constitutional error correction of last resort? Anybody who has something terribly unconstitutional happen… gets the Court's attention.”

Notable Quotes & Memorable Moments

• [20:38] – Amar: “Substantive due process seems almost a contradiction in terms, an oxymoron.”
• [24:59] – Baude: “It was predictable that once there was a conservative majority of the Supreme Court, they would not be as wedded to judicial restraint… but I did not think it was going to happen so fast.”
• [26:34] – Epps: “I don't want to go on the record as this fierce defender of substantive due process. The result in Mirabelli strikes me as somewhat reasonable... My objection is... the way it seems to create the impression… that it's being inconsistent, because I think that… is a problem.”
• [29:52] – Amar: “It is an advantage in a democratic society for people to believe, with justification, that the Court... is actually doing something that plausibly is in the Constitution.”
• [39:38] – Baude: “Already we've got a kind of ‘how do we decide at what level of generality to use’ problem... these things are manipulable.”
• [44:30] – Amar: “I thought Obergefell just rock solid and Griswold was obviously rightly decided and Loving versus Virginia was race discrimination and also outlier states... So the rationales matter.”
• [46:39] – Isgur: “What's the future of substantive due process? Are we just never going to hear about this again?... This is going to keep coming back... we’re going to have to do something about unenumerated rights.”
• [47:46] – Epps: “I think this can't be the end of it, right?... there's 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.”
• [50:29] – French: “It seems quite prudent if you can do it expeditiously to just, just mainstream this, put it into, into the normal course of business.”
• [57:50] – Epps: “Is that a sustainable job for nine people at the Supreme Court... to be the nation’s constitutional error correction of last resort?”

Key Case References (with Context)

• Mirabelli v. Bonta: Parental rights vs. school notification of gender transition.
• Dobbs v. Jackson Women’s Health: Overturned Roe v. Wade; focused on abortion and the limits of substantive due process.
• Skremetti: Tennessee law on gender transition treatments for minors; raised but sidestepped substantive due process.
• Glucksberg (1997): Refused to find right to assisted suicide; landmark history/tradition test.
• Other cases cited: Loving v. Virginia (interracial marriage), Griswold v. Connecticut (contraception), Lawrence v. Texas (sodomy laws), Obergefell v. Hodges (same-sex marriage).

Timestamps for Key Segments

• [03:34] – Setup of Mirabelli case and procedural status
• [06:04] – David French contextualizes the law and constitutional rights at stake
• [08:44] – Sarah lists foundational cases for listeners to know
• [13:42] – Amar and Lipka on the mission of America’s Constitution podcast
• [15:11] – Baude and Epps introduce Divided Argument’s approach
• [20:38] – Professor Amar on the conceptual contradictions of “substantive due process”
• [24:59] – Baude on conservative jurisprudence and legal realignment
• [29:52] – Amar explains the stakes: why the label/rationale matters
• [34:31] – Amar compares Roe and Griswold under historical/fundamental rights analysis
• [39:38] – Baude: Manipulability and the “level of generality problem”
• [43:00] – Epps: Will Obergefell and similar precedents survive, or just get relabeled?
• [44:30] – Amar: Why Loving, Griswold, and Obergefell are on a firmer foundation than Roe
• [47:46] – Epps: The future of substantive due process doctrine
• [50:29] – French: The problems with emergency/“shadow” docket decisions
• [56:42] – Baude, Epps, and Amar on the role of the Supreme Court as “error corrector”

Tone and Style

The discussion is collegial, lively, and nerdy, filled with gentle roasting ("Paul McCartney of Chicago," “Left wing lunatic!”), Beatles analogies, and direct but respectful disagreement. The panel oscillates between legal technicalities, broad historical context, and contemporary court-watching, appealing equally to law students, scholars, and informed lay listeners.

Conclusion

The episode ultimately shows that:

• The debate over unenumerated rights and substantive due process is very much alive—doctrinally, methodologically, and politically.
• Where rights are located in constitutional text/structure impacts their legitimacy, constancy, and perceived legitimacy.
• Supreme Court method and rationale still matter deeply to both legal theorists and the health of public confidence in the law, especially as social conflicts continue to produce new claims for “liberties not in the Constitution.”