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