Judge Don Willet on the Liberty Interest and Role of the Judiciary

Last post, we provided commentary on Supreme Court Justice Clarence Thomas’ perspective on substantive due process and how he strongly opposes the doctrine. This week we contrast that perspective with Judge Don Willet of the Fifth Circuit, a major conservative jurist, who offers support in recognizing substantive due process in the context of economic liberties. Judge Willet prioritizes the liberty interest embedded in the due process clause as worthy of meaningful judicial intervention when necessary.

When Judge Willet served on the Texas Supreme Court his concurrence in the case, Patel v. Texas Department of Licensing and Reg., recognized that the courts have a duty to protect economic liberties, especially in the context of occupational organizations. The facts presented here  revolve around an eye-brow threading business that challenged Texas law for its oppressive regulations in obtaining cosmetology licenses. To obtain a license, it required 720 hours of training and a large portion  of the training hours did not directly relate to the occupation. The court also considered the out-of-pocket expenses of obtaining the hours and the delaying of employment while meeting the hours requirement as constituting an oppressive burden on the small business.[1]

Judge Willet’s opinion is brilliantly written and emphasizes the importance of the licensing requirements for the small business being related to the service provided. The approach of the Texas law infringes on the liberty interest of those seeking to obtain a license with its excessive requirements that did not correlate appropriately with the services provided.[2]

He also spends a large portion of his concurrence providing contrasting perspectives in the conservative legal movement’s approach to economic rights. In one camp, he highlights Judge Robert Bork and traditional conservatives that have looked at the judiciary from a more non-interventionist perspective to give way to majoritarian decision-making. In the other camp, he finds himself, where the judiciary must intervene when necessary and not leave it always to strict majoritarian decision-making. Liberty is the priority and judges have a duty to enforce this as a chief staple of limited government. He finds that “economic freedom is indispensable to enjoying other freedoms.”[3]

While I find myself more in the traditional camp when considering Alexander Hamilton’s clear mandate in Federalist 78 for the judiciary to be bound with judgment authority not with legislative authority, I have a great deal of respect for Judge Willet’s perspective especially within the contexts of these facts. However, we need to be very cautious when calling for judicial enforcement of economic liberties under the due process clause. In the matter presented here, it is a logical solution to oppressive regulations, but often courts can find ways to misconstrue and abuse sound judgment found in other cases when considering their own. This can lead to a problematic doctrine that emerges in which a cycle of damaging precedent is established.

Consider these facts, in an alternate universe suppose Roe v. Wade was one day overturned and states again had the power to make decisions on the legalization of abortions through democratic measures. Now consider Planned Parenthood, a company that provides several health services for women including abortions. Assume a state banned abortion through democratic measures, but a Planned Parenthood remained in the state. How would Planned Parenthood’s claim be adjudicated if it believes the state law has been oppressive to its economic liberty interest and abortions were a key component to its business? On one hand we have that abortion is no longer a Constitutional right, but on the other we may have the court finding an extension of economic liberty under the Constitution with regards to a business practice in opposition to state law. Perhaps the easy solution would be for that Planned Parenthood to no longer offer abortions, but maintain other services, but it is doubtful that it would be content with that arrangement.

This is the slippery slope that can be encountered if we are not careful with how we handle economic liberties. The sound liberty reasoning of Judge Willet in Patel with regards to a burdensome occupational licensing requirement can easily be weaponized into a battle over the creation of new Constitutional rights.

A viable counter-argument from Judge Willet explains that economic regulation is not as often generated by legislatures, but rather by administrative entities that are not subject to proper oversight. When considered it in this context, a judicial deference to legislatures would not be a viable solution to correct unjust policy.[4]  In these situations, the judiciary must provide a forcible intervention in an effort to preserve an individual’s liberty interest to economic freedom.

However, I would then offer the premise that referendums and amendments to state constitutions should be promoted by the state authorities and political figures to address an excessive administrative state. Democracy, when allowed to blossom to its fullest extent, can make meaningful reforms. I do understand the hesitancy of Judge Willet, however, in embracing a full majoritarian platform. The people can be misled and interests of the minority perspective can be shunned by unregulated rule of the masses. That is why these are very difficult questions and it is the responsibility of the branches of government to provide legitimate checks on one another.

Overall, I believe both the perspectives of Justice Thomas and Judge Don Willet provide compelling arguments for how to evaluate substantive due process. I find myself more in the Thomas camp with strict resistance to substantive due process and the uncertainties it poses, however I can also see the wisdom of Judge Willet’s argument that emphasizes liberty and the duty of judges to restrict an unregulated majoritarian state that would challenge it.

[1] 469 S.W.3d 69 (2015)

[2]Judge Don Willet Concurrence,  http://www.txcourts.gov/media/1008502/120657c1.pdf   page 29

[3]Judge Don Willet Concurrence,  http://www.txcourts.gov/media/1008502/120657c1.pdf   page 37

[4]Judge Don Willet Concurrence,  http://www.txcourts.gov/media/1008502/120657c1.pdf  page 17


Modern Substantive Due Process Perspectives Part 1:  Justice Clarence Thomas     

While researching for a prior blog post a couple weeks back, I had a chance to review the Supreme Court’s decision in Obergefell v. Hodges.  Last year, renowned legal scholar Professor Scott Gerber who has spent significant time providing commentary on Supreme Court Justice Clarence Thomas’ jurisprudence spoke at our St. John’s Federalist Society Chapter to reflect on Justice Thomas’ legacy. He suggested at the event that I read Justice Thomas’ dissent in that case to gain insight into his substantive due process jurisprudence and I am glad I had the opportunity to do so.

This week we will cover some modern commentary on substantive due process  and analyze Justice Thomas’ dissent in this case that was rooted in a critique of substantive due process. We will then briefly explain the similarities it has with the late great Judge Robert Bork’s view on this doctrine.

As discussed above, Justice Thomas provided sharp critical commentary of substantive due process in his dissent. He stated:

“It distorts the constitutional text, which guarantees only whatever ‘process’ is ‘due’ before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here—’roa[m] at large in the constitutional field’ guided only by their personal views’ as to the ‘fundamental rights’ protected by that document. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 953, 965 (1992). By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority.”[1]

When evaluating due process cases, Justice Thomas first looks to if there is a deprivation of life, liberty, or property. This is the most important part of the analysis because there must be something that the government is taking or denying without first undertaking fair procedures to validate its decision. This is the part of the analysis where Justice Thomas acknowledges that the door opens for activist adjudication. He warns that a great distortion of the due process clause is relied upon here to support the invention of fundamental rights. He is critical of the legal reasoning which claims that not recognizing this previously unenumerated “right” would violate the due process clause. However, due process should not apply if the right does not exist as a matter of Constitutional law.  It is a doctrine with weak foundations. Due process protections should not be invoked to protect “rights” that do not hold a firm Constitutional basis.

The substantive due process example from this dissent concerns the issue of marriage as a Constitutional right and is one of the best modern examples, however there are many more that have plagued the Supreme Court for generations dating back to the infamous Dred Scott case when persons were classified as property, thus invoking due process. Just as persons should not have been considered property under the clause, neither should marriage be considered under the liberty provision.

For example, states have traditionally been the issuers of marriage licenses and state legislatures had individually defined what constituted the definition of marriage under their state policies. Some chose a limited view to heterosexual unions and others a more expansive definition, thus opening the definition to same-sex unions and requiring the issuance of the licenses to those couples. In both cases, heterosexual and same-sex marriage were not issues of Constitutional law as the Constitution remained silent on expanding the liberty provision to include this marriage right.

As Justice Thomas so eloquently explains later in his dissent:

“Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of ‘substantive’ or ‘procedural’ due process—a party must first identify a deprivation of  ‘life, liberty, or property.’ The majority claims these state laws deprive petitioners of ‘liberty’, but the concept of ‘liberty’ it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.[2]

He then invokes William Blackstone as a strong basis for historical support for this position:

“As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure.”[3]

 Judge Robert Bork provides a similar perspective to Justice Thomas in his book, The Tempting of America.  He reasoned that the due process clause was “simply a requirement that the substance of law be applied to a person through fair procedures by any tribunal hearing a case. The clause says nothing whatever about what the substance of the law must be.”[4]  This position reflects Justice Thomas in the sense of warning about constructing substantive rights without a supportive Constitutional basis and taking given provisions out of context to satisfy an unconstitutional end.

In our substantive due process reflections, whether we agree or disagree with the perspective put forth by Justice Thomas and Judge Bork we should consider the nature of due process. Understanding the background of this important clause and its historical context as it has evolved through the generations in law will make us better informed on the law and Constitutionalist principles.

[1] 135 S. Ct. 2584 (2015).

[2] Id.

[3] Id.

[4] Robert Bork, The tempting of America: The Political Seduction of the Law 32 (1991).


Scalia Speaks Part 1 Review: Vocation of a Judge

I have been reading Christopher Scalia and Edward Whelan’s wonderful compilation of the late great Supreme Court Justice Antonin Scalia’s notable speeches in their book, “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.”[1]  I highly recommend this book to everyone, not just those with a legal background.  All Americans would do well to absorb the words of this modern icon.

This series, beginning with this post will highlight some of the most inspirational speeches found in the book.  Most of us are aware of the distinct character of Justice Scalia’s legal opinions and colorful dissents, but these talks cited here bring us to understand the very heart of Justice Scalia. Many of these speeches have been very Scalia Speaksmoving to me.  Today’s post will focus on the speech “The Vocation of a Judge” that the late justice gave in Peru in 2007.  It is a timeless lesson and should help shape our perspective on how to view judges as guardians of the law.

Justice Scalia breaks down his speech into emphasizing three important qualities that reflect a good judge. First, he explains judges recognizing their role as servants of the law.  Second, judges should use a neutral, objective decision-making process that is dictated by the traditions of the legal system when deciding cases.  He calls this principle scholarship.  Third, he encourages judges to exercise appropriate demeanor to the parties that come before him, rooted in fairness and inspiring confidence from the public of the process undertaken to reach the result.

First, as servants of the law Justice Scalia emphasizes that personal biases of the judge should not come in the way of a proper evaluation of the legal texts and facts presented to decide the matter at hand.  In this speech he focuses on the personal biases of some judges for or against capital punishment and how their perspective should not end legislative debate through an errant ruling.

Scalia’s concept can also be viewed in the marriage and abortion contexts in the modern day. The Supreme Court’s decision on the definition of marriage in Obergefell v. Hodges silenced the voice of democracy and valid legislative debate on the issue. Some states were in favor of expanding the definition, while others were not and each state had valid reason to turn to their people and legislatures to decide the issue.  In abortion, when Justice Scaliaconsidering the Roe v. Wade decision in 1973, the question of its legal prowess could have been maintained in the state context through state law and amendments to state constitutions through referendums if necessary.  One may contemplate the degree of personal biases in both these decisions and question if the reasoning reflected that of good judging.

 Second, Justice Scalia considers an objective and neutral decision-making processes as necessary to be undertaken by judges in order to reach conclusions on the legal matters presented to them. A judge should be consistent with his interpretive style and not veer off course too often in order to reach a desired outcome.  There must be a distinction between natural inclinations and the duty presented to judges to fairly interpret the law based off objective authority and rooted within the confines of the Constitution.

An example that comes to mind would be a jurist that is devout in his faith tradition during his personal life.  It is acceptable to have formed a personal perspective on a major issue.  However, when the judge is presented with facts in a case the outcome reached should not come as a result of his theological belief on a major topic, but rather his interpretation on what the Constitution has presented or not presented on the issue.  It would be the expectation that perhaps the Federalist Papers would be cited rather than the Catechism of the Catholic Church when composing a majority opinion.

Third, Justice Scalia considers the presentation of a judge to the parties in court.  The parties should not feel a sense of discomfort or fear that they will not be given a fair evaluation of their legal arguments.  This is why it is very important when judges give interviews or public statements on personal perspectives they should strive to not espouse a sense of unfair bias when considering issues that might be considered in the cases presented to them.

The people of the nation must trust the process and have confidence in the judiciary.  The judiciary is the check on legislative and executive overreach.  However, Justice Scalia does explain that this does not mean that a judge should be making a decision for the sake of popularity or being heralded as a social icon because of the outcome reached.  No, he finds that the judge who may go against the societal tide should accept and embrace rejection from louder figures because he took an oath to defend the Constitution, not answer to the people like politicians. This is a very important message and all too often when reviewing Supreme Court history, we read decisions that seem to hint at reputation building rather than Constitution preserving.

Lastly, Justice Scalia provides an interesting assessment on the roots of judicial activism. He finds that emphasis in the first year of law schools on teaching common law, which is judge made law, begins to form a pattern in the mind of the young student that a judge who creates the best rule is the ideal judge. He used the example of the notable Palsgraf v. Long Island Railroad Company case where there are great distinctions in the majority opinion of Judge Cardozo vs. the dissenting opinion of Judge Andrews when evaluating the case.  Both of the methods used are debated to this day on which was the best rule to apply to the negligence issue presented in that case.

Justice Scalia, argues in contrast, that the laws in which he is mainly tasked with assessing include acts by Congress and interpretation of the Constitution itself.  Our legal system is not based in common law, rather it simply serves as a guide.  This principle applies to many levels of the judiciary such as state courts where commonly statutes are interpreted.  Statutes are laws passed by a legislative entity.  The United States Constitution and the various state constitutions were not created by judges.  Justice Scalia calls on judges to stay within their confined authority when embarking on their judicial career.  The concept of a judge should not be introduced to the next generation of legal minds as a lawmaker, this develops an unhealthy pattern of legal interpretation.

Overall, this speech was inspiring and Justice Scalia provided several interesting lessons on how to evaluate good judging and its vocation.

[1] Christopher J. Scalia and Edward Whelan, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (2017).

Reflecting on the Humble and Independent Jurisprudence of Byron White

Byron White was appointed to the Supreme Court by President John F. Kennedy in 1962. During his tenure on the Court he distinguished himself as a maverick on several occasions and was not susceptible to the evolving views of society when he approached cases presented to him. He was one of the best modern-day examples of judicial independence and has received praise from both sides of the ideological aisle. With that being said, it is hard to classify him as either a judicial conservative in the mold of Justice Scalia or a judicial liberal in the mold of Justice Ginsburg. Nor should he be thought of as an ardent Constitutionalist. Rather, he was a justice that understood and embraced a humbleness in his duties as a jurist and recognized the Supreme Court as not a place for judicial legislating, but rather a place for judicial evaluating. It also should be noted that Justice Gorsuch clerked for him.

This post will reflect on a couple of Justice White’s major opinions where he exercised judicial deference in contemplating his role as a justice adjudicating these major matters that held heavy societal implications. Justice White fully embraced his role as a jurist and the duties that came with that responsibility. Alexander Hamilton’s words in Federalist 78 in describing the Supreme Court, “It may truly be said to have neither FORCE nor WILL, but merely judgment” come to mind when reflecting on Byron White.

Justice White was hesitant to endorse the creation of new Constitutional rights and his dissent in Roe v. Wade[1] reflects this perspective.  This sense of judicial humbleness should be embraced by judges today on the bench and be a persuasive characteristic when appointing and voting for the confirmation of judges.

A notable excerpt gives us insight into Justice White’s approach and why this should be a viable standard of measurement for judicial appointments in the modern day:

“The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes….  As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”[2]

He dissects Roe and is very critical of the process outlined in the majority opinion in which the Supreme Court invalidated valid democratic decision-making by state legislatures regarding abortions. It expanded the 14th Amendment liberty interest that had already been found to encompass the right to privacy in Griswold v. Connecticut[3] to include the right to abortion. Although concurring in Griswold, he found Roe went too far with creating the right to abortion and overruling the decisions of many states on the issue.

Inventing a Constitutional right that will have a major impact on society is not something that should be taken lightly and Justice White firmly believed it was not the place of the Court to end the debate with its ruling. He recognized the power given to the Court in judicial review, but warned that this opinion was an abuse of that power.

Retired Supreme Court Justice John Paul Stevens, who served along side Justice White for many years on the Supreme Court, acknowledged Justice White’s later reluctance to have the judiciary exert excessive influence when it comes to evaluating the liberty interest under the 14th Amendment. He stated in his work, Cheers! A Tribute to Justice White, that

“Justice White’s opinions, like those of Justices Harlan, Frankfurter, and Cardozo, demonstrate a conviction that the judicial power to define the concept of liberty is not open-ended.”[4]

This conceptual understanding further manifests itself in Justice White’s majority opinion in the case, Bowers v. Hardwick[5]  that concerned state statutes criminalizing sodomy. He demonstrated judicial restraint by not elevating sodomy to a fundamental right, but rather allowing democracy to run its course with the states maintaining the decision-making authority on the matter and maintaining their freedom to assess the merits of the statutes:

“Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930’s, which resulted in the repudiation of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance.[6]

He positioned himself as a firm critic of judicial intervention when there is no textual anchor to create a fundamental right, most specifically in regards to interpreting the due process clauses in the Constitution. His words hint at the danger of the nation falling under rule by the judiciary when these clauses are distorted to find a fundamental right when the text has not clearly stipulated it. He goes so far as to coining the Court “nearest to illegitimacy” when it takes this path. These are strong words, but this understanding should be embraced in the modern day as judges come to better grasp their role in interpreting, rather than making law.

Overall, Justice White’s approach to the bench can be considered one of humbleness in embracing his role as a Supreme Court jurist and not being afraid to defer to democracy when the case presented calls for it. The independence streak he displayed is a model for judges tasked with the responsibility to interpret law. It is doubtful he was concerned about how the history books would view his jurisprudential legacy, but rather more likely his chief concern was upholding the Constitution and recognizing the limitations that come with this task.

We will close with these thoughts offered by J. Thomas Sullivan on Justice White in his work, Justice White’s Principled Passion for Consistency:

“[H]e demonstrated a strain of judicial independence and dedication to principle that encourages us, as lawyers, to believe that all presidential appointments to the High Court have the potential for faithful service to a vision of the Constitution that is not imbedded in extreme political ideology or blindness to the virtues of reasoned argument.”[7]

Let us take these words to heart and honor Justice White’s legacy by entering a post-politically charged phase when it comes to the appointment of judges. When these judges assume their position on the bench, let them then follow in his footsteps and recognize their role and the limitations it brings.


















[1] 410 U.S. 113 (1973).

[2] 410 U.S. 179 (1973), 221-23. (Doe v. Bolton- companion case to Roe- dissent taken together)

[3] 381 U.S. 479 (1965).

[4] John Paul Stevens, Cheers! A Tribute to Justice Byron R. White, 1994 BYU L. Rev. 208, 214 (1994).


[5] 478 U.S. 186 (1986).

[6] Id. at 194-95 (Later this case would be overturned by Lawrence v. Texas , 539 U.S. 558 (2003) which overturned a Texas Criminalized Sodomy Statute).


[7] J. Thomas Sullivan, Justice White’s Principled Passion for Consistency, 4 J. App. Prac. & Process 79, 80 (2002) https://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1035&context=appellatepracticeprocess