Comments on: An Eagle Eyed SCOTUSblog reader

By: Fern R

Fern R — Mon, 27 Jun 2005 16:04:55 +0000

Hmm. Guess I was right. The list in Thomas’s opinion was a mixed bag of cases that he agreed with and disagreed with. :)

By: Andy Siegel

Andy Siegel — Mon, 27 Jun 2005 14:00:19 +0000

Whoever named “substantive due process” did the doctrine a diservice. Both our dictionaries and our legal traditions well support the notion that if the government seeks to take away your life, liberty, or property it need provide not only a hearing and an opportunity to be heard, but also a rule of decision linked to a sufficiently weighty state interest. Even in the colloquial sense, it would deny you “due process” to lose custody of your child because you have red hair or go to jail because your name begins with a G, even if you had a hearing, a lawyer, the opportunity to call witnesses, etc. “Substantive due process” doctrine does nothing more than play out that rule in a variety of more complicated and closer real world situations.

By: Fern R

Fern R — Fri, 24 Jun 2005 23:41:10 +0000

Simon–Rest assured that there are many within the legal community that agree with you. In light of the fact you’ve probably been banging your head against the wall while pondering substantive due process, I’ll withhold my comment regarding your “coffe-flavored Starbucks” drink.

By: Simon

Simon — Fri, 24 Jun 2005 19:34:49 +0000

I have to admit that, from the layman’s perspective, one of the more absurd aspects of the “substantive due process” doctrine – were that not a sufficiently contradictory proposition – is the logical need for the antomyn “procedural due process”. And with that, I will ajourn for a cup of coffee-flavoured Starbucks coffee.

By: Larry Tribe

Larry Tribe — Fri, 24 Jun 2005 17:22:19 +0000

I’ve not read the CA10 decision on review in Castle Rock and don’t have time to check on it this afternoon, but because the municipality is the petitioner it wouldn’t surprise me at all to discover that CA10 deferred to some state or municipal lawmaking entity’s legal conclusion to the effect that the respondent possessed a state-created property entitlement, pursuant to the TRO that the police in that case allegedly ignored, not exactly to have the TRO immediately enforced via police assistance in response to respondent’s 911 calls (an entitlement sufficient to render DeShaney immaterial) but at least to some explanation of why such assistance wasn’t being, or hadn’t been, provided (a holding that would have been the predicate for a further conclusion that respondent had been deprived of this entitlement without procedural due process, perhaps citing Logan v. Zimmerman). And I’d not be surprised, if these guesses hold up, to see the Chief, no fan of the procedural due process holding of Logan (recall the oral argument in Baker v. GM) delivering, possibly as the final ruling of his chief justiceship, an opinion holding that CA10 erred in treating the state entity’s view that such TROs confer entitlements of some kind as sufficient to give respondent what the 14th amendment contemplates when it uses the term “property.” Even if a cause of action for administrative relief constitutes property for 14th amendment procedural due process purposes, the Chief might say, in a tone that casts doubt on Logan’s continuing vitality, a “right” to have the municipality explain why it isn’t responding at once to a plea for enforcement of a TRO is too gossamer a thing to constitute “property” within the 14th amendment’s meaning. Or so I’d predict if I had to predict anything…

By: Law Clerk

Law Clerk — Thu, 23 Jun 2005 22:44:25 +0000

This isn’t exactly on-point to this post, but I think it’s a very telling side-note to today’s opinion. Did anyone else notice Thomas citing the Lochner majority opinion APPROVINGLY? He cites Holmesâ€™ famous “Mr. Herbert Spencer” line, but then says “but see id. at 58-62 (Peckham, J., for the Court). Gusty, to say the least. After Raich and Kelo are we perhaps finally seeing the Natural Law scholar in Thomas bubbling to the surface?

By: Fern R

Fern R — Thu, 23 Jun 2005 18:35:58 +0000

Oops. I missed Goldberg. That would make three cases holding that there was a due process violation and two finding that there was not (if Castle Rock goes in favor of the city). Still not a list of cases Thomas disagrees with (again assuming that Castle Rock goes to the city).

By: Fern R

Fern R — Thu, 23 Jun 2005 18:30:59 +0000

ohwilleke–If Castle Rock goes in favor on the City and not Gonzales, then Thomas’s opinion will not have made “a point of repeatedly citing liberal opinions with which he doesn’t agree.” He will have cited two opinions with which he may not agree (Payton and Deck) and two with which he does agree (Castle Rock and Roth). And he will have put them in exactly that order.

By: phil

phil — Thu, 23 Jun 2005 17:55:05 +0000

As I said in the thread below, the Roth case which Thomas also cites found that there wasn’t a due-process violation.

By: Will Baude

Will Baude — Thu, 23 Jun 2005 17:24:24 +0000

Of course, Thomas did cite that case as an example of the court not-deferring to the legislature’s decision about whether a property right was created, which certainly *seems* to make Gonzales’s victory more likely, unless the court did something curious like announcing that it was not deferring on the question and then agreeing with the legislature anyway.