Realigned: Standing and Substantive Due Process

Some Thoughts on Mirabelli v. Bonta

In December 2024, Justice Alito, joined by Justice Thomas, wrote a remarkable dissent from denial of certiorari in Parents Protecting Our Children v. Eau Claire. Their opinion not only diluted or contradicted well-known standing principles that they themselves had previously enforced but also embraced a substantive due process right. In both respects, these most conservative of justices were acting like the liberal jurists of a prior generation.

Moreover, the two pivots were linked. At the time, I argued that Alito and Thomas sought “to loosen jurisdictional principles in order to enforce and expand the [substantive due process] right.” Thus, I concluded, “standing and substantive due process are being realigned together. Seemingly discrete pivots are synchronized.”

Now a majority of the Court, comprising at least five and apparently all six conservative justices, has issued a similar ruling in Mirabelli v. Bonta. Though the standing issue is not the same, the substantive due process question essentially is. And, here too, the conservative justices have loosened standing doctrine even as they enforce a substantive due process right. So the dual ideological trend that Justices Alito and Thomas foretold has now come to pass.

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In Mirabelli, parents sued a public school for two kinds of relief. First, the parents sought to be informed about their children’s gender identification at school; second, they sought to control the names and pronouns that teachers used when identifying their children. Some plaintiffs invoked the Free Exercise Clause. For other plaintiffs, however, both requested remedies critically rested on assertions of substantive due process. The parents won at trial, but the Ninth Circuit stayed that ruling pending appeal. In Mirabelli, the Court, in a per curiam order, vacated the Ninth Circuit stay. The Court concluded that the plaintiffs “very likely” had standing and “likely” would prevail on the merits.

The Court’s substantive due process holding calls to mind Troxel v. Granville, a substantive due process ruling from 2000 about parents’ authority to block visitation by grandparents. At that time, about two and a half decades ago, Justice Scalia was the leading conservative intellectual and judge. By way of illustration, he had recently published A Matter of Interpretation. Scalia embodied legal conservativism’s skepticism toward substantive due process and unenumerated rights.

In Troxel itself, Justice Scalia argued that substantive due process rights of parents ought not be judicially enforced, and he cast grave doubt on the foundational substantive due process cases on that topic, namely, Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923). Where is that once-familiar hostility to substantive due process among the Court’s six conservative jurists in Mirabelli? Nowhere.

Much has been said about Justice Scalia’s huge influence on the law and the reverential way in which justices routinely invoke him. Yet the current Court has openly reversed some of Scalia’s central jurisprudential projects. Chevron deference is only the most obvious example. The conservative justices are also undergoing a standing realignment. The major questions doctrine has made old-school textualism seem quaint. And cases like Mahmoud v. Taylor (itself cited in Mirabelli) are eroding Employment Division v. Smith, a major ruling by Justice Scalia that Justice Alito has lambasted.

Some sophisticated conservative thinkers have argued in favor of unenumerated rights on grounds other than substantive due process. These efforts are strategically attractive, insofar as they allow conservatives to get around their once-famous opposition to substantive due process while essentially doing the same thing under another name. The most salient form of this argument rests on the Privileges or Immunities Clause of the Fourteenth Amendment. Other efforts focus on the Ninth Amendment or natural law. In the past, formalist thinkers like Justice Scalia have perceived that these sorts of approaches are generally substantive due process redux. They all allow judges to assert their intuitions as constitutional rights.

Remarkably, the conservative justices in Mirabelli did not even attempt to argue that their ruling was justified on any grounds other than precedent on substantive due process. Perhaps they had no choice if they wanted to grant relief to all plaintiffs, since the case was litigated as a substantive due process claim. The justices may also have lacked the historical evidence necessary to support the requested result under any other theory. Indeed, even Washington v. Glucksberg’s tradition-based test for substantive due process requires “careful” specification of a proposed liberty interest—and it is hard to see how such an inquiry could support the Court’s result. At any rate, no historical inquiry appears in the case. On the key issue, the opinions were all doctrine, and all substantive due process doctrine at that.

The conservative justices did recognize the obvious incongruity of sustaining a substantive due process claim while being conservative. How could they fail to do so, when Justice Kagan forcefully pointed it out in her dissent?

In response, Justice Barrett, joined by the Chief Justice and Justice Kavanaugh, argued that they were entitled to rely on precedent alone. And that precedent supposedly “controls our assessment of whether the parents are likely to succeed on the merits,” leaving the result “dictated by existing law.” The per curiam opinion itself likewise rested on “long-established precedent,” cursorily citing four authorities: Pierce, Meyer, the Troxel plurality, and Parham v. J.R. (1979).

The cited precedents do establish certain parental rights as a matter of substantive due process. Meyer involved a teacher prosecuted for teaching a child German. Pierce involved a law requiring public school attendance. Troxel addressed a court order to allow visitation. And Parham involved “what process is constitutionally due a minor child whose parents or guardian seek state administered institutional mental health care for the child.”

These four precedents do not control or dictate the outcome in Mirabelli. They all involved coercive state action, such as threatened prosecution or detention. Such coercion intuitively involves a deprivation of “liberty” within the meaning of the Due Process Clauses. Yet that central feature of all four cases was absent in Mirabelli, which involved no coercive enforcement action or detention.

In addition, several important aspects of Mirabelli were absent in all four cited precedents. None of those cases involved information disclosure. None of them involved speech by government officials. None of them involved a mandate for government officials, either to disclose information or to engage in speech. None of them involved the internal operation of a public school. One could go on.

So there was a substantial gap between the cited cases and the case at bar. Now, there is nothing unusual about that. Controversial cases featuring legal uncertainty routinely get to the Supreme Court, and the justices then reason from past cases while fashioning new precedent. That is part of the Supreme Court’s job.

The question is: what to do with the precedential gap? Alas, that pivotal question was the precise issue that the per curiam opinion and Justice Barrett’s concurrence sought not to raise, much less answer. They instead claimed, incorrectly, there was no precedential gap at all. But they could make that assertion only by casting case law on substantive due process at a high level of abstraction.

The cited cases showed, according to the Court, that “parents—not the State—have primary authority with respect to ‘the upbringing and education of children.’” That statement is banal, qualified, and vague. It could support parental control over all public school curricula, or no control at all. It could mandate that teachers disclose all manner of classroom behavior every day, or none at any time. It could mean that parents must be able to choose exactly which public school their children attend, or not. Or it could entitle the parents to public funding to attend any private school or program of their choice, or else to no public funding whatsoever.

So neither constitutional text nor precedent could dictate an answer to the substantive due process question at hand, or any number of other controversial questions. Such vast indeterminacy explains why opponents of judicial discretion have—for centuries—also been skeptics of substantive due process and unenumerated rights. And it also why possessors of judicial power have always, including today, been drawn to those same doctrines.

In an earlier era, a liberal jurist like Justice Douglas would likely have seen the kind of precedential gap at issue in Mirabelli and leapt into action, fashioning new unenumerated rights, as in Griswold v. Connecticut. Naturally, those rights would have aligned with Justice Douglas’s own liberal ideology. By contrast, a conservative like Justice Scalia would probably have inveighed against substantive due process as a concept before checking the growth of unenumerated rights and reducing their import, as in Troxel.

In Mirabelli, all six conservative justices acted more like Douglas, even as they used some rhetoric from Scalia, an erstwhile hero whose ideas are now falling out of fashion. The main difference is that Mirabelli generated a substantive due process right that accorded with conservative ideology, not Douglas’s liberalism. But that difference only points out a deeper similarity. Powerful judges generate unenumerated rights that they like.

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The standing issue in Mirabelli hardly appears at all, yet it too shows clear evidence of legal realignment.

As compared with the parents in PPOC, the Mirabelli parents had a stronger claim to standing because their own children had been directly affected by the challenged policy. Even so, a wrinkle remained, for the challenged policy applied to teachers and school personnel, not to children or parents. The parents were complaining about rules and policies binding on the teachers, not themselves.

The Mirabelli Court ironed out this wrinkle in a way that was as brief as it was doctrinally consequential. Here is the entirety of the Court’s explanation of why the parents had standing: “the parents protected by the injunction very likely have standing because they are objects of the challenged exclusion policies. See Diamond Alternative Energy, LLC v. EPA, 606 U. S. 100, 114 (2025).” The idea here is that people can qualify as “objects” of rules or policies, and have standing on that basis, even if they are not directly regulated by the rules or policies.

However, the Court’s permissive “objects” test for standing was only raised and not actually adopted or applied in the cited case. Diamond, that is, floated the possibility that not just directly regulated actors but also “objects” of regulation may have presumptive or automatic standing. Yet Diamond explicitly declined to so hold, since that case could be resolved on more conventional grounds. The Court may have chosen to reserve this issue in Diamond in order to secure Justice Kagan’s decision to join the majority opinion.

In Mirabelli, however, the “objects” test—which had previously not even qualified as a dictum—appears to do all the analytical work, rendering standing “very likely.” What exactly this test means is hard to discern at present. But its novelty is apparent, as is its tendency to expand the availability of standing.

Justice Scalia once again comes to mind. He was famous in part for tightening up standing. In his view, more jurisdiction meant more judicial power. And he was right. But he expressed those concerns back when conservative jurists such as himself were used to writing furious dissents, including in substantive due process cases like Planned Parenthood v. Casey.

Nowadays, by contrast, Scalia’s successors in judicial conservativism are free to write confident majorities in substantive due process cases like Mirabelli. They have nothing to fear from that doctrine because they are making it. So why not expand standing, too, in the very same breath that expands substantive due process?

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These patterns of legal realignment are hardly new, and they may even be desirable. Conservative opposition to substantive due process could have been misguided—as liberals have long contended. So ideological reversal can yield correct results, perhaps including in Mirabelli itself. But it is still important to be aware of when these reversals are taking place.