Skip to content

Cass R. Sunstein, Dobbs and the Travails of Due Process Traditionalism, in Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Lee C. Bollinger & Geoffrey Stone eds., 2024).

Abstract: The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. With Burkean and Thayerian arguments at work, the Court offers an understanding of the Due Process Clause which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty.” Within the opinion’s logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of nontraditional or antitraditionalist substantive due process cases into doubt. 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. A central reason must be that the Court believes in some forms of moral progress. The central weakness of the Dobbs opinion is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.