Right-wing Supreme Court justices skewered in blistering dissent on gender identity

Supreme Court Justice Elena Kagan tore into her right-wing colleagues in a dissent to a Monday "shadow docket" ruling that grants an appeal to religious parents challenging California policies that protect schoolchildren's confidentiality about gender identity.

In that dissent, she accused the majority of deploying a doctrine they themselves disparaged multiple times to undermine liberal legal rights.

"This Court, to affirm the relief given ... explains that the State’s policy 'excludes parents' from 'participation in decisions regarding their children’s mental health,'" wrote Kagan. "But the very phrasing the Court uses betrays the delicateness of the operation: Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine — it is, again, substantive due process — that provides the right’s only basis."

"Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court — and especially of the Members of today’s majority," wrote Kagan. "The Due Process Clause, needless to say, does not expressly grant parental rights of any kind. The relevant text bars a State only from depriving a person of 'liberty' 'without due process of law.' Members of the majority often have expressed skepticism — sometimes outright hostility — to understanding the 'capacious' term 'liberty' to enshrine specific rights" — citing Dobbs v. Jackson Women’s Health Organization, the ruling that overturned Roe v. Wade abortion rights.

Kagan didn't stop there — bringing up specific examples of justices in the majority here who attacked the entire concept of substantive due process.

"Substantive due process, one has stated, is a 'particularly dangerous' 'legal fiction' because it 'invites judges' to 'roa[m] at large in the constitutional field guided only by their personal views'" — quotes from Justice Clarence Thomas. "Another has pointed to the 'judicial misuse of the so-called ‘substantive component’ of due process to dictate policy on matters that belonged to the people to decide'" — quotes from Justice Neil Gorsuch. "And yet a third, when defending the Court’s elimination of a 50-year-old right grounded in substantive due process, explained that the 'Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution'" — quotes from Justice Brett Kavanaugh.

In response to this, Justice Amy Coney Barrett attempted to respond in her own concurrence, denying that the court has argued that substantive due process is never a thing in any circumstances.

"Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects," wrote Barrett. "It does not follow from Dobbs that all our substantive due process cases conflict with Glucksberg, much less that stare decisis would counsel overruling any that do."