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Cass R. Sunstein, Dobbs and the Travails of Due Process Traditionalism (Harv. Pub. L. Working Paper No. 22-14, 2022).

Abstract: The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver, at least in the domain of “substantive due process.” With Burkean and Thayerian arguments at work, the Court offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Court’s opinion is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditional or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditional or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law. The central weakness of the Dobbs opinion – and plausibly, its fatal flaw – is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.