Not Lochner! : Substantive Due Process As Democracy-Promoting Judicial Review

<p>In <i>Dobbs </i>and <i>Obergefell</i>, the conservative Justices who attack substantive due process law equate it with <i>Lochner</i>. Crying "<i>Lochner</i>!" warns judges against recognizing rights in ways that restrict democratic decision making. Of the many substantive due process cases--from incorporation to parental rights and punitive damages--it is the cases addressing sexual intimacy, reproduction, and the family--namely, <i>Griswold</i>, <i>Roe</i>, <i>Casey</i>, <i>Lawrence</i>, and <i>Obergefell</i>--that prompt the <i>Lochner </i>objection. Robert Bork famously associated the <i>Lochner </i>objection with sexual and judicial license, observing that a judge had "no principled way to decide that one man's gratifications are more deserving of respect than another's" and so lacked a principle "other than his own values upon which to set aside the community judgment embodied in the statute." To this day, many on the left agree with conservatives that the substantive due process rights protected in these cases are more of an (illegitimate) imposition on democratic processes than equality rights. On this view, equal protection rights in <i>Brown v. Board of Education </i>are claims for democratic inclusion grounded in constitutional principle, while modern substantive due process rights are not.</p><p>This essay supplies an answer to the Lochner objection by demonstrating how judicial review of substantive due process claims can be democracy promoting. We recover histories showing that the canonical substantive due process cases, long maligned as antidemocratic, involved claimants whose causes had been censored and vilified in ways that deformed the functioning of ordinary politics. Courts opened their doors to the claimants and offered a forum for speaking out when political channels were blocked. From this perspective, we can appreciate how judicial review democratized politics.</p><p>Recovering this history of modern substantive due process law raises fundamental questions about the role of courts in a democracy. We take as a given that democracy is more than majoritarianism. Democracy is majoritarianism conducted under certain background conditions. Once we recognize that democracy requires "free and equal participation" sufficient for participants to identify with outcomes even when they lose, it is clear that there are forms of judicial review that promote democracy, and others&nbsp;that inhibit it. Courts can enforce the infrastructure of representation and enforce guardrails on majoritarianism. And courts can amplify the voices of claimants and channel political conflict.</p><p>Returning to the history of the substantive due process cases, we can see that courts did not take the claims “out of politics,” as is so often alleged. Instead, when courts opened their doors, they were enabling politically marginalized groups to begin public dialogue about long censored and stigmatized subjects. In this way, courts can play a critical role, even apart from adjudication, in a democratic order that depends on multiple fora to engage different elements of the public in collective deliberation and decision making. </p><p>Of course, federal courts have become increasingly hostile to the groups long associated with the modern substantive due process cases—as evident in <i>Dobbs</i> and <i>United States v. Skrmetti</i>.&nbsp; Just as it is important to recognize the dangers that federal court-based strategies pose for certain claimants today, it is important to recognize that at other moments, federal and state courts supply venues in which claimants can interact with decision makers and engage in ongoing political struggles.</p>