Courts often protect our rights. And sometimes more than one right at a time. The Supreme Court just chose to use some century-old opinions to protect the rights of parents. The embrace of “substantive due process” came as a surprise to many Court watchers and raises the question of how far some justices may go with the doctrine. Could future decisions protect another liberty—the right to earn a living? While the Court can read anything however it wants, if it carefully reviews the old cases it just relied on, signs just might point to yes.

On March 2, 2026, in Mirabelli v. Bonta, the Court granted an emergency request to temporarily stop a California policy that prevents school officials from telling parents when their children transition genders at school. A district court had permanently enjoined the law under both free exercise and due process claims but the Ninth Circuit had stayed the injunction. The Court’s ruling lifted that stay, resulting in the policy being enjoined while the appeal to the Ninth Circuit progresses. There is a lot fit for discussion in the Court’s order and accompanying opinions—including the granting of an emergency request brought by private litigants and the continued expansion of free exercise doctrine. What I want to focus on here is how the Court used the doctrine of “substantive due process” in a new—but perhaps old?—way. 

The underlying facts of the case touch on one of the hottest cultural issues in the U.S. today. Anonymous plaintiff families did not know their children were transitioning at school. Indeed, one set of parents only learned about their daughter’s on-campus social transition after she attempted suicide. The parents claimed the state’s policy of not sharing information with parents violated both their religious liberties but also their “right to direct the upbringing and education of their children.”

If you look in the Constitution you won’t find those words. But the Court has nevertheless protected that right. It is an “unenumerated” right that the Court has long said is protected under a concept that today we call “substantive due process.”

Etcetera, etcetera

When the Constitution’s framers drafted language to protect rights—both at the Founding and after the Civil War—they knew that no document could protect all important rights. So they put in what I have called elsewhere “etcetera clauses,” language implying there are other rights beyond those explicitly listed that are nevertheless important and should be protected. The Constitution has several provisions that fans of unenumerated rights (like myself) have pointed to for bearing this burden. One is the Fourteenth Amendment’s Privileges or Immunities Clause, stating: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Another is the Due Process Clause of the same sentence in the same amendment—and the virtually identical version in the Fifth Amendment—which bars deprivation of “any person of life, liberty, or property, without due process of law.” And there is the Ninth Amendment, reminding us that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 

For the most part the Supreme Court has only employed the Due Process Clauses to protect unenumerated rights. The Slaughterhouse Cases (1873) killed the Privileges or Immunities Clause in its crib and the Ninth Amendment has enjoyed over 230 years of deliberate judicial ignorance. Yet even though it’s the only unenumerated game in town, substantive due process has nevertheless done a lot of work, mostly within two time periods.

The first was the so-called “Lochner era,” stretching from the late 1890s to 1937. Most of these cases concerned economic liberties, such as the right to contract and the right to earn a living. This includes the eponymous Lochner v. New York, where the Court declared unconstitutional a cap on the number of hours that bakers could work. The lion’s share of this caselaw went poof once FDR, Felix Frankfurter, and others got his way with the Court during the New Deal.

The second period is the one that lasted from Griswold v. Connecticut (1965) and Roe v. Wade (1973) through at least (more on “at least” below) Dobbs v. Jackson Women’s Health Organization (2022). (Technically Griswold wasn’t a substantive due process case—it rested on “penumbras” and “emanations.”) These cases were mostly quite different from the earlier variety: abortion, contraception, sexual intimacy, and family relationships. Litigants challenging restrictions on these liberties received some form of “heightened scrutiny,” while economic liberties were subject to the extremely deferential rational basis test, dooming almost any legal challenge. Now, Dobbs has overturned Roe, packing abortion off to the rational basis zone. Thus, it seemed like perhaps the rest of these “modern” substantive due process cases might be heading there too and could mark the end of this second period. Which is why Mirabelli has raised so many eyebrows. 

Schoolhouse work

Note that I said the cases from the second period were “mostly” different from those of the Lochner era. They weren’t entirely. A bridge between the two has always been a set of 1920s cases involving education, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). 

All of these cases witnessed the Court protecting substantive rights via due process. In Meyer the state had banned foreign language instruction in private schools. (For much more on Meyer and many of the issues discussed in this post check out IJ’s conference on its centenary, which we held in 2023.) In Pierce the state had outright banned private schools. In each, the court said that parents had a right to direct their children’s education and that these laws violated that right. This “non-economic” angle in these cases gave cover for the Court of the second substantive due process period to use them in striking down restrictions on family relationships and intimacy and not look like it was actually reviving the hated Lochner. This included the invalidation of a grandparents’ visitation law in Troxel v. Granville (2000), a case the Court cited in Mirabelli.It was this modern, revisionist, understanding of Meyer and Pierce that the court applied on March 2nd against California.

But the Court’s modern story of these cases has always been misleading. They were about much more than parental rights. In both Meyer and Pierce the challenging party wasn’t a parent. Robert Meyer taught German in a Lutheran school. Nebraska prosecuted him and he raised due process as a defense. Pierce was a pair of civil actions brought by Oregon schools, one run by a religious order and the other a private military academy. Now, all of these litigants invoked the rights of parents. What is forgotten is that they also invoked their own rights—rights to earn a living and to contract with parents, just as Joseph Lochner had invoked his right to contract with his baker employees. The Court weaved these rights together. Of Mr. Meyer it said he “taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment.”

Deeply unexpressed

The obvious irony about Mirabelli is that the conservate justices in the majority had previously been extremely hostile to using substantive due process. Dissenting, Justice Elena Kagan pointed this out, noting the majority justices have called the doctrine “dangerous,” heretofore demonstrating “outright hostility.”

And yet those justices did protect unenumerated rights via “substantive due process” without any noted opposition among them—in an emergency request they by no means needed to take. So there is still life to substantive due process, at least of the parental rights flavor. But will there be life for other rights as well? 

In a concurring opinion, Justice Amy Coney Barrett, joined by the Chief and Justice Kavanaugh, defended her vote by explaining that the Court only protects what she called “unexpressed rights” if they are “deeply rooted in this Nation’s history and tradition” and that parental rights fit that standard, unlike abortion. In any case, she continued, no one questioned the validity of the Meyer and Pierce line of cases (which included a 1979 case involving mental health, Parham v. J.R.)so she was going to enforce them.

Fair enough. But if Meyer and Pierce are about more than just parental rights, will she enforce the rest of those cases too? The right to earn a living is not only squarely protected by those cases but “deeply rooted” too. 

(Also, as an aside I’ll note it’s deeply cryptic that Justice Barrett said “unexpressed rights” and not “unenumerated rights.” I did a search and found “unexpressed rights” has only been used a little over a dozen times in any American judicial opinion ever and never in the Supreme Court. Even then, the phrase was usually used in a non-constitutional context. Was she trying to avoid the Ninth Amendment, which says “enumeration” and is the reason why judges and scholars employ the otherwise unusual term “unenumerated”? Hopefully this does not portend hostility toward the Ninth Amendment, which is expressed in the Constitution, after all.)

In any case, Mirabelli reveals that the Court is more open to unenumerated rights than was guessed in the wake of Dobbs. In future cases there is now more of an opening to argue for the history and tradition of earning a living simply by relying on these cases from the 1920s. That will require the Court to protect more than one right at a time. It has before. I hope it can do it again.

Anthony Sanders is the Direct of the Center for Judicial Engagement at the Institute for Justice.