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View Diary: Opening the Door (281 comments)

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  •  Substantive due process?? (none)
    Potter Stewart reconciled his dissent from Griswald and his concurrence in Roe based on a substantive due process argument.  See eg http://www.yalelawjournal.org/pdf/112-5/StevensFINAL.pdf
    As you may well know, the concept of Substantive Due Process is no longer the coin of the realm in the Supreme Court.  While it was used as "filler" in the past when the Supremes wanted to achieve a particular result but couldn't find the textual basis for the result, it has fallen on hard times of late.  I wouldn't cite to these quotes expecting any of the current Supremes to give you a high five.  Stare Decisis is the way to go, not substantive due process.

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