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
Article from Reason.com
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