Amid the fierce battles that take place during the confirmation process of a Supreme Court justice, surprisingly little attention is given to the fact that both sides of the political spectrum generally agree on a matter of profound constitutional importance—namely, the proper level of scrutiny courts are to exact with respect to state and federal legislation. Presently, and for the better part of the last 70 years, the dominant attitude among judicial conservatives and liberals alike is that courts have no authority to strictly scrutinize the overwhelming majority of legislation enacted by state and federal legislatures.
This Comment argues that the Court's current substantive due process doctrine, which traditionally provided an important framework for reviewing the constitutionality of state and federal legislation, not only lacks a solid constitutional foundation but also fails to protect the most basic individual fights and liberties. This Comment discusses the shortcomings of the substantive due process methodology within the context of Abigail Alliance v. Eschenbach, which held that terminally ill individuals have no constitutional right to access innovative medicinal treatments that have the potential to preserve and prolong their lives. This Comment concludes that, although the current substantive due process doctrine is highly flawed, the decision in Lawrence v. Texas provides a glimmer of hope that one day the Court will reassert the judiciary's responsibility to meaningfully review and scrutinize the constitutionality of state and federal legislation.
Brandon S. Swider,
Judicial Activism v. Judicial Abdication: A Plea for a Return to the Lochner Era Substantive Due Process Methodology,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol84/iss1/12