Changes

The question of what rights are fundamental is essential to this doctrine, as the nature of the right determines if its abridgment receives cursory or fairly in-depth review.  Defining rights as "fundamental" is a popular judicial sparring ground for conservative and liberal jurists.  Different formulations have been used, based on the shifting tides of Supreme Court opinion, to define when a right is fundamental.  Conservative jurists, like [[Antonin Scalia]] or [[William Rehnquist]], state that a right is only fundamental if it is deeply rooted in the nation's history, or in the text of the Constitution, or necessary to the foundations of "ordered liberty" in a civil society.<ref>Washington v. Glucksberg, Rehnquist, C.J., for the Court.</ref>

The question of what rights are fundamental is essential to this doctrine, as the nature of the right determines if its abridgment receives cursory or fairly in-depth review.  Defining rights as "fundamental" is a popular judicial sparring ground for conservative and liberal jurists.  Different formulations have been used, based on the shifting tides of Supreme Court opinion, to define when a right is fundamental.  Conservative jurists, like [[Antonin Scalia]] or [[William Rehnquist]], state that a right is only fundamental if it is deeply rooted in the nation's history, or in the text of the Constitution, or necessary to the foundations of "ordered liberty" in a civil society.<ref>Washington v. Glucksberg, Rehnquist, C.J., for the Court.</ref>

In contrast, liberal jurists prefer a formulation that protects all rights against "arbitrary restraint."<ref>Glucksberg, Stevens, J., concurring.</ref>  This formulation protects "liberty's more transcendent dimensions" from encroachment by the majority, and is a more robust conception of due process.<ref>Lawrence v. Texas, Kennedy, J., for the Court.</ref>  This formulation also has support in earlier cases.<ref>Poe v. Ulman, Harlan, J, dissenting.</ref>  Also, liberal jurists suggest that a desire to enforce "the morality of some" upon the entirety of society compromises "the liberty of all," which is truly what the due process clause protects. This view is currently the dominant one, although the tenure of Chief Justice Roberts may see a renewed ascendancy of the weaker version.<ref>Planned Parenthood of SE Pennsylvania v. Casey, Opinion of the Court, Part I.</ref>

In contrast, liberal jurists prefer a formulation that protects all rights against "arbitrary restraint."<ref>Glucksberg, Stevens, J., concurring.</ref>  This formulation protects "liberty's more transcendent dimensions" from encroachment by the majority, and is a more robust conception of due process.<ref>Lawrence v. Texas, Kennedy, J., for the Court.</ref>  This formulation also has support in earlier cases.<ref>Poe v. Ulman, Harlan, J, dissenting.</ref>  Also, liberal jurists suggest that a desire to enforce "the morality of some" upon the entirety of society compromises "the liberty of all".   This view is currently the dominant one, although the tenure of Chief Justice Roberts may see a renewed ascendancy of the alternative view.<ref>Planned Parenthood of SE Pennsylvania v. Casey, Opinion of the Court, Part I.</ref>

The standard of review defines the scope and utility of the doctrine.  The "arbitrary restraint" formulation makes substantive due process a robust counter-majoritarian doctrine, designed to protect the rights and actions of the minority against abridgment by a majority eager to enforce its view of morality upon the nation.  The alternative conception - the "tradition" based inquiry noted above in ''Glucksberg'' - rather makes the due process clause fairly weak in substantive protection, conceiving of the judiciary as too limited to serve as a robust counter-majoritarian branch.

The standard of review defines the scope and utility of the doctrine.  The "arbitrary restraint" formulation makes substantive due process a robust counter-majoritarian doctrine, designed to protect the rights and actions of the minority against abridgment by a majority eager to enforce its view of morality upon the nation.  The alternative conception - the "tradition" based inquiry noted above in ''Glucksberg'' - rather makes the due process clause fairly weak in substantive protection, conceiving of the judiciary as too limited to serve as a robust counter-majoritarian branch.