Constraining and Licensing Arbitrariness: The Stakes in Debates about Substantive-Procedural Due Process
Authors: Hershkoff Helen , Resnik Judith 
Published: December 2023

“Due process,” unmodified by the words “substantive” or “procedural,” has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment.

Thus, on occasion, the Supreme Court has concluded that court fees had to be waived, subsets of litigants needed to be provided with lawyers, and failures to pay fines or child support could not result in detention unless judges inquired into the “ability to pay.” Judges also assessed the “fairness” of procedures in courts and agencies and at times required revamping modes of decision making. Moreover, due process was the touchstone of the “fairness” of state courts’ exercise of jurisdiction over absent litigants and application of their law to out-of-state parties.

Thus, in various contexts, and at times in conjunction with other constitutional and common law provisions, due process had come to denote the relationship between government and individuals that entails respect for people expressed through procedures and decision making that are fundamentally “fair.” Due process has thus been adaptive, pluralistic, and Janus-faced—looking to protect individuals in their encounters with government while shoring up the authority of governments to enforce their laws.

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, rejecting the federal constitutional right to an abortion, raises concerns about this account of due process. Our contribution to this Symposium is to sketch the elaboration of due-process principles that, built in earlier eras, came to apply to people who had been denied these protections. We analyze how the Supreme Court has, through the interaction of due process and equal protection, begun to address inadequate litigation resources and asymmetries between individuals and their adversaries in courts and agencies. We sketch the intersection of due-process norms with other constitutional provisions and the embeddedness of aspirations for non-arbitrary and fair treatment across diverse doctrinal categories including family, criminal, banking, and administrative law, as well as in other common and civil law systems. Yet, as Dobbs makes plain, commitments to due process and equality can be undermined. Through clarifying the stakes in debates about due process in a variety of its forms, we hope to encourage mobilization across the political spectrum to reject the potential for a frightening arbitrariness that members of the current Supreme Court seem poised to countenance. Renewed commitments are needed to insist on practices of bounded lawfulness, equality, and fairness that due process has encoded and should continue to promote.