Polarization at the Supreme Court? Substantive Due Process Through the Prism of Legal Theory


Much has been written about Obergefell v. Hodges, holding that

same-sex marriage is protected by the Fourteenth Amendment. Virtually

all commentators view the decision as an example of an increasingly

polarized Supreme Court.

This article challenges that characterization by analyzing Kennedy’s

majority opinion and Roberts’ dissent in Obergefell in light of the legal

theories of H. L. A. Hart and Lon Fuller. The article argues that, from a

legal theory perspective, Kennedy and Roberts exhibit numerous, often

surprising commonalities. In addition, Kennedy’s arguments seem to

accurately reflect the methodology he explicitly endorses. Roberts, in

contrast, seems to exaggerate his originalist commitment to the

Constitution because he relies on public policy assumptions that he fails to

recognize or defend. I conclude that Kennedy’s substantive due process

approach is constrained by explicit Court precedents, rather than being

open-ended or idiosyncratic, and that Roberts relies in key respects upon

public policy, which is obscured by his claim of originalism and his focus

on the separation of powers.

The legal theory analysis thus reveals a more penetrating, yet more

moderating, theoretical framework within which to discuss disagreements

about individual rights, especially evolving claims to previously

unrecognized rights, than is possible based upon constitutional theory



Obergefell, Hart, Fuller, Kennedy, purposivism, judicial restraint



Miriam Galston (The George Washington University)



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