Polarization at the Supreme Court? Substantive Due Process Through the Prism of Legal Theory

Much has been written about Obergefell v. Hodges, holding that same-sex marriage is protected by the Fourteenth Amendment. Virtually all commentators view the decision as an example of an increasingly polarized Supreme Court. This article challenges that characterization by analyzing Kennedy’s majority opinion and Roberts’ dissent in Obergefell in light of the legal theories of H. L. A. Hart and Lon Fuller. The article argues that, from a legal theory perspective, Kennedy and Roberts exhibit numerous, often surprising commonalities. In addition, Kennedy’s arguments seem to accurately reflect the methodology he explicitly endorses. Roberts, in contrast, seems to exaggerate his originalist commitment to the Constitution because he relies on public policy assumptions that he fails to recognize or defend. I conclude that Kennedy’s substantive due process approach is constrained by explicit Court precedents, rather than being open-ended or idiosyncratic, and that Roberts relies in key respects upon public policy, which is obscured by his claim of originalism and his focus on the separation of powers. The legal theory analysis thus reveals a more penetrating, yet more moderating, theoretical framework within which to discuss disagreements about individual rights, especially evolving claims to previously unrecognized rights, than is possible based upon constitutional theory alone.