THERE'S NOTHING CONFUSING ABOUT DUE PROCESS:

Several prominent jurists avoided the line-drawing problem altogether by rejecting "substantive due process" as judicial activism. New Deal justice Hugo Black disagreed with the Supreme Court's recognition of a constitutional right to contraception in Griswold v. Connecticut on the grounds that federal courts had no constitutional power to invalidate state laws as "arbitrary, capricious or unreasonable." Black's view was widely shared among the early leaders of the conservative legal movement, most notably the federal appellate judge (and failed Supreme Court nominee) Robert H. Bork.

In Washington v. Glucksberg (1997), Rehnquist struck a balance on the scope of constitutional liberties in a case that rejected constitutional protections for euthanasia. In his majority opinion (all of the justices rebuffed a constitutional right to physician-assisted suicide, but for different reasons), Rehnquist recognized that the due process clause protects individual rights that are not expressly enumerated in the constitution. But to invalidate a state law, Rehnquist ruled that the individual right had to be "deeply rooted" in the nation's history and tradition. He further cautioned that courts needed to exercise the "utmost care" in determining whether the historic record "objectively" supported the recognition of constitutionally protected liberty.

The formulation is a product of Rehnquist's own skill as a lawyer in negotiating a compromise between conservative and libertarian views of constitutional liberties.

Rehnquist's formulation turned the page on the internal war among conservative jurists on the doctrine of substantive due process. The Chief Justice flatly rejected Bork's view that unenumerated rights are constitutionally baseless. By the same token, Rehnquist circumscribed the scope of substantive due process rights to avoid the ahistorical invention of new constitutional rights against longstanding and widely-accepted state restrictions.

Twenty-five years after the decision, Glucksberg remains the controlling standard for determining substantive due process cases. Justice Alito's majority opinion in Dobbs turns on whether abortion is "deeply rooted" in the American experience. The opinion begins by invoking Glucksberg and proceeds with a thorough historical analysis of abortion restrictions during which Rehnquist's opinion is cited a dozen times.

Without Glucksberg, the conservative justices in Dobbs would have lacked a workable due process standard. And it is impossible to imagine the Glucksberg standard coming from anyone other than Chief Justice Rehnquist. Although Justices Scalia and Thomas signed onto Glucksberg, the opinion does not analyze the due process clause from an originalist perspective. Instead, the formulation is a product of Rehnquist's own skill as a lawyer in negotiating a compromise between conservative and libertarian views of constitutional liberties. It's notable that Rehnquist worked for both Barry Goldwater and Richard Nixon.

The realism of the Glucksberg formulation may leave constitutional idealists disillusioned. But it will likely continue as the due process standard for as long as the court's current conservative majority remains in place. What this means is that the one-time conservative aversion to unenumerated rights is officially over. This could pave the way for constitutional challenges to overbearing school boards under the name of parental rights "deeply rooted" in the nation's history. Proponents of judicial restraint may question whether courts are best positioned to adjudicate the contours of fundamental rights.

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