Substantive Due Process: Dangerous or Necessary?

established abortion as a constitutional right. It is interesting to consider, however, how wildly
different these cases could have been if they had not started from that common understanding.
The potential for confusion in state cases is not necessarily a cause for concern. Our
nation consists of multiple independent states (and independent judges), and such judicial
disagreements could be another example of our federalist system working as intended. It also
might be that this possibility for significant state freedom is merely an illusion: in these cases,
the Supreme Court recognized the need to clarify the standard by which free speech claims
should be measured against abortion rights, took the Florida case, and decided it just eight
months later. 22 Most cases, however, do not reach the Supreme Court—it hears just 100-150
cases from the over 7,000 writs of certiorari each year. 23 Since the Supreme Court hears so
few cases per year and can only act on an issue when it is presented with a relevant case, it
cannot frequently reverse its precedent. This precedential stability forms the core of our
judicial system—for better or worse, it ensures that, when the Court makes a decision, it
remains as precedent for years, often decades.
Abortion cases provide the most prominent examples of how substantive due process has
been used to establish previously unenumerated rights. It seems inevitable that at some point in
the near-future there will be another set of cases concerning the right to privacy—and its
interaction with enumerated rights—that require the Court’s guidance. Most pressing in the
legislative and public agenda seems to be how the right to privacy relates to social media
companies and their use of data. The public is also debating the choice by social media giants to
flag and censor speech they deem misleading. State and federal courts have already begun to
hear challenges to these companies, and it will be fascinating to see once again if and how free
speech can be limited when the government has a significant interest to the public health and/or
the pursuit of truth, and if and how the right to privacy can extend to the digital world. Like
abortion, social media use has no mention in the Constitution—we must wait and see the extent
to which the courts exert their influence when presented with the opporunity.
Substantive due process should not be universally condemned—by presenting the
possibility for implicit, fundamental rights to exist at the state level, it allows courts to extend
22
Operation Rescue v. Women's Health Ctr.
23
Administrative Office of the U.S. Courts, “Supreme Court Procedures," United States Courts,
November 15, 2020,
https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activityresources/supreme-1.