The “fundamental rights” that the Supreme Court has identified in its substantive due process cases have evolved over time. In the 19th and early 20th centuries, the Court used the doctrine to protect what it called “economic rights,” which led it to strike down numerous laws designed to help workers and consumers. Since 1937, however, the Court has stopped using substantive due process in this way. Instead, it has used the doctrine to protect individuals from government overreach, people who are relatively powerless politically. In the mid-to-late 20th century, the Court found several new fundamental rights, including things like the right to marry, the right to have children, the right to keep custody of your children and the right to rear your children as you see fit. Most of these fundamental rights involve matters of family which are typically considered part of a constitutional right to privacy, or, as one judge put it, “the right to be left alone.” Perhaps the most controversial of the fundamental rights are those dealing with reproductive choices, such as the right to use contraceptives and the right to abortion, at least before the point of viability.
None of these “fundamental rights” are specifically mentioned in the Constitution. How, then, can the Supreme Court justify creating them? The 9th Amendment provides one textual basis, but it is not one that the Court often cites. Therefore, the entire foundation of substantive due process analysis can seem somewhat shaky. And indeed, not everybody in the legal profession today accepts the doctrine. Justice Antonin Scalia has mocked it mercilessly: “Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But lawyers talk this way all the time.” Justice Scalia also criticizes the doctrine’s unpredictability: “what liberties are [protected by substantive due process]? The Court will tell you. Be patient.” What was once established as a protection against the arbitrary use of executive power has become, according to this perspective, an instrument for arbitrary judicial power.