The Supreme Court isn't actually getting rid of that controversial "due process" rule; they’re just using it to rewrite how the government works.
SSRN · March 13, 2026 · 6302958
Why it matters
While high-profile cases like the one overturning Roe v. Wade suggested the death of "unwritten" constitutional rights, this paper reveals the Court is using the exact same logic to limit the power of the administrative state. The Court has essentially traded using the doctrine for social issues to using it for institutional ones.
From the abstract
After the Supreme Court overruled Roe v. Wade, commentators made much about the possible demise of substantive due process—the idea that the Constitution safeguards certain substantive liberties that are not specifically or explicitly spelled out in the Constitution. Judges and scholars are debating which substantive due process decisions are next on the chopping block and whether the entire domain of substantive due process is in jeopardy. But a curious thing happened as the Court scaled back a