Justice Thomas Avoids Substantive Due Process with Meyer and Pierce

On June 26, the Court decided Gutierrez v. Saenz. Justice Thomas wrote a thoughtful concurrence that explored the meaning of “liberty” in the Due Process Clause. In that concurrence, Thomas cast doubt on the doctrine of substantive due process. Yet, as I noted, Thomas was a bit cagey about Meyer v. Nebraska, and the right to raise children. I suspect that Mahmoud was on Thomas’s mind.

On June 27, the Court decided Mahmoud. As I explained in this post, the Court resolved this case about parental rights with barely any mention of substantive due process. The Court is still suffering from Lochner-phobia. Everything was grounded in the Free Exercise of Religion. For example, Justice Alito wrote:

“[W]e have long recognized the rights of parents to direct ‘the religious upbringing’ of their children.” Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 486 (2020) (quoting Yoder, 406 U. S., at 213–214).

Meyer and Pierce were not limited to “religious upbringing.” Those precedents referred to upbringing of children, in all contexts.

Justice Sotomayor’s dissent describes the majority opinion accurately:

Here, however, the Court’s analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that “the burden in this case is of the exact same character as the burden in Yoder.”

Justice Thomas wrote a concurrence in Mahmoud that hinted at substantive due process, briefly. Thomas explains that Yoder was based on Pierce v. Society of Sisters:

In reaching this conclusion, the Court relied heavily on its earlier decision in Pierce, which articulated “perhaps the most significant statements of the Court in this area.”

And Pierce, in turn, was a substantive due process case:

While the Court did not decide Pierce on free exercise grounds,[FN4] the context in which Pierce arose confirms that it “stands as a charter of the rights of parents to direct thereligious upbringing of their children.” Yoder, 406 U. S., at 233.

[FN4] The Court decided Pierce 15 years before it recognized that the First Amendment’s free-exercise guarantee applies against the States. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).

Griswold and other Warren Court cases tried to recast Pierce as a Free Exercise case, but that doesn’t work. Lochner and Pierce are cut from the same cloth.

For reasons I do not understand, Justice Thomas doesn’t cite his Gutierrez concurrence, or talk about Lochner. He may have made peace with a substantive due process right to raise children, but his cagey about the basis.

At bottom, the Justices don’t want to talk about Smith, and they don’t want to talk about substantive due process. But now that Dobbs overruled Roe, I do think there is some space to talk about facets of substantive due process that may be correct.

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