Not Lochner!: Substantive Due Process as Democracy-Promoting Judicial Review

In Dobbs v. Jackson Women’s Health Organization[1] and Obergefell v. Hodges,[2] the Justices who attack substantive due process law equate it with Lochner.[3] Today, crying “Lochner” has so much force that it is often unclear what the objection itself entails.[4] “Lochner” warns federal judges to defer to a legislature’s judgments in enacting ordinary social and economic legislation. But the modern substantive due process cases—Griswold v. Connecticut, Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey, Lawrence v. Texas, and Obergefell v. Hodges[5]—do not concern such legislation. In modern substantive due process cases, judges invoke Lochner to express a far-reaching objection: to warn judges against protecting unenumerated rights and second-guessing the decisions of democratic bodies.[6]

To this day, many on the left agree with conservatives that, compared to equality rights, substantive due process rights—at least those involving intimate relations—are more of an (illegitimate) imposition on democratic processes.[7] On this view, equal protection claims—as in Brown v. Board of Education—are claims for democratic inclusion grounded in constitutional principle, while modern substantive due process claims are not.[8]

In this Essay, we supply an answer to the Lochner objection by demonstrating how judicial review of substantive due process claims can be democracy-promoting. In doing so, we situate the modern substantive due process cases within a broader discussion of the role of courts in a democracy. Our democratic order depends on multiple fora to engage different elements of the public in collective deliberation and decision-making. We show that the canonical substantive due process cases, long maligned as antidemocratic, in fact arose as courts opened their doors to groups historically silenced in politics and offered a forum for speaking out when political channels were blocked. We conclude by reflecting on whether and how judicial hostility to claimants of the kind manifest in Dobbs and United States v. Skrmetti changes the role that courts can play today.[9]

I.

Citation to Lochner in debates over contemporary substantive due process doctrine began with Justice Black’s dissent in Griswold.[10] Writing for the Court, Justice Douglas distinguished the facts of Lochner and Griswold, but the Griswold dissent thought it was a distinction without a difference.[11] In his 1971 article on Neutral Principles, Robert Bork famously equated the Lochner objection with sexual and judicial license, observing that a judge had “no principled way to decide that one man’s gratifications are more deserving of respect than another’s” or that “sexual gratification” was “nobler than economic gratification” and so lacked any basis “other than his own values upon which to set aside the community judgment embodied in the statute.”[12]

If Bork equated the Lochner objection with sexual and judicial license, John Hart Ely amplified these associations in his famous 1973 critique of Roe in The Wages of Crying Wolf.[13] Ely repeated his attack on substantive due process in his foundational 1980 book, Democracy and Distrust. There, he elaborated footnote four in United States v. Carolene Products[14] into a process-based argument that judges vindicating (certain) constitutional rights would promote, rather than limit, democracy.[15] Ely depicted judicially enforced constitutional rights as democracy-promoting in cases where government was obstructing channels of political change by suppressing citizen voices (e.g., speech, voting)[16] and in cases where the majority excluded minorities from political participation (as with equal protection and race discrimination).[17] In contrast, Ely viewed judicial enforcement of substantive understandings of due process as an illegitimate political interference with democratic processes.[18]

Ely’s critique of substantive due process retains its persuasive power. In denigrating Roe in Dobbs, the Court quoted Ely for support.[19] Refusing to protect abortion as a substantive due process right, the Dobbs Court cast itself as vindicating democracy by returning the abortion question to the realm of politics.[20] In overturning Roe and Casey, the Dobbs majority claimed to embrace a more disciplined “history-and-tradition” approach to substantive due process.[21] In concurrence, Justice Thomas encouraged the Court to revisit the other modern substantive due process decisions[22]—Griswold,[23] Lawrence,[24] and Obergefell.[25]

Ely had an important, big idea—that judicial review (in a case like Brown) could be democracy-reinforcing by imposing guardrails on majoritarianism that protect the conditions of deliberation, participation, and representation.[26] Ely grasped that democracy could not be reduced to majoritarianism and that prejudice could produce deliberative blockages that would exclude, in the language of footnote four, “discrete and insular minorities.”[27] But Ely failed to see how the democracy-reinforcing theory of judicial review he proposed might extend to the substantive due process cases he attacked.

Contra Ely, the Carolene Products framework does not demand such hostility to substantive due process. Instead, footnote four directs our attention to the background conditions that enable or impede the claimants’ ability to participate in our democracy—conditions that may be relevant to both equality and liberty claims. Unlike the business owners in Lochner, the claimants in the modern substantive due process cases were facing “prejudice . . . [that] tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”[28] To understand why, we return to the modern cases’ social-movement roots.

A.

The modern substantive due process cases—from Griswold to Obergefell—arose as members of groups long excluded from the political process asserted liberty- and equality-based claims to engage in conduct that had been banned for at least a century. Stigmatization of these banned practices—and censorship of speech about them—was so severe that it became difficult for claimants to even publicly discuss the practices whose prohibition they sought to protest. The turn to the courts was part of a strategy to cope with deliberative blockages and legislative lockout rooted in conditions we now recognize as subordination.

A century before Griswold and Roe, the nation was emerging from the Civil War and responded to women’s demands for suffrage by imposing increased reproductive controls. By the aftermath of the Civil War, many states broke from the common law, which prohibited abortion at quickening (a woman’s perception of fetal movement midway through pregnancy) and adopted laws banning abortion (many of which eliminated the quickening standard).[29] In 1873, Congress enacted a postal obscenity law that banned from the mail erotica and other stimulants to indecent sex—including, for the first time, information and articles facilitating contraception and abortion; states soon followed the federal approach.[30] In the Comstock Act’s wake, nearly all states maintained their own obscenity laws, with many prohibiting the dissemination of information about contraception and abortion.[31] Prosecutions under the Comstock Act “stigmatized political speech about sex and reproduction” with the result that “legislatures proved unwilling or incapable of reforming obscenity legislation,” even when a majority of Americans opposed such legislation.[32]

The Comstock Act provoked increasingly widespread resistance—first by free lovers and civil libertarians, then by suffragists advocating “voluntary motherhood,” and ultimately by ordinary Americans who equated controlling birth with “health,” especially during the years of the Great Depression.[33] But “[b]ecause women remained at the nation’s political margins, members of Congress feared the costs of appearing to license obscenity—or contraception—more than they did any potential backlash from a group of voters who lacked leverage in the nation’s major political parties.”[34] In this context, courts provided an arena for a politically marginalized group to advocate for changing a long stigmatized body of law at a time when “there were still only a handful of women who served in Congress, on the federal bench, or on the faculties of the nation’s elite law schools.”[35] Government censorship persisted into the 1970s, as states continued to limit the dissemination of information about contraception.[36] Indeed, the federal government continued to single out advertising for contraception, compelling the Supreme Court to weigh in as late as 1983.[37]

The first feminists to pursue repeal of New York’s abortion ban struggled with the legacy effects of centuries of disfranchisement. The New York legislature had convened a panel of fourteen men and one nun (so-called “expert witnesses”) to testify on legislative reform, prompting advocates to demonstrate.[38] Rather than listen, the legislative committee (composed of eight men) adjourned and resumed in closed session, seemingly unwilling to hear women’s claims that abortion criminalization constituted, in one commentator’s description, “class legislation, imposed on women by a male-supremacist society.”[39]

To combat stigma, women innovated a new movement practice, organizing “speak-outs” about abortion that defied expectations of silence to discuss the compelling reasons why they had decided to end a pregnancy.[40] The speak-out strategy gained steam as the movement sought to reform and repeal abortion laws around the nation and to pursue its larger goals for transforming family life.[41]

Some activists translated the forms of protest developed in abortion speak-outs into legal strategies challenging abortion restrictions in court.[42] For example, women’s depositions about their abortion experiences would be given in public.[43] Courts provided a venue to amplify women’s voices, making audible claims that legislators failed to take seriously.

B.

For most of our nation’s history, far-reaching criminal law and searing public condemnation of homosexuality meant that most gays and lesbians could not publicly identify themselves.[44] Even during decades when criminal prohibitions were only intermittently enforced, they amplified the stigmatization of prohibited sexual practices and prevented discussion that might lead to reform.

Government authorities also used obscenity law to suppress discussion of homosexuality.[45] In the 1950s, “homophile” activists in Los Angeles founded ONE, which the FBI described as a magazine “concerning the civil rights of homosexuals based on allegations of entrapment and persecution by police departments and unfair treatment by the government.”[46] When ONE produced an issue under the cover story “HOMOSEXUAL MARRIAGE?,” Los Angeles postal inspectors seized the issue as obscene.[47] When a later issue again elicited government suppression, ONE challenged the censorship. After lower court opinions upholding state censorship, the Supreme Court, in light of its evolving approach to obscenity under the First Amendment, ruled in ONE’s favor in 1958.[48] During this period, the prospect of the government wielding obscenity law against the “homophile” press chilled discussion of gay and lesbian rights.[49]

Even as obscenity law became less restrictive, the act of coming out identified oneself as a presumed criminal, given widespread laws prohibiting sodomy and same-sex sexual activity.[50] Even outside the criminal law, coming out was freighted with devastating consequences in the spheres of work and family life.[51] It is unsurprising that, in Stonewall’s wake, this country had no openly lesbian or gay elected officials or federal judges.[52]

Eventually, gays and lesbians organized large-scale “coming out” campaigns as a strategy of collective action. These campaigns were designed to combat stigma that impeded the participation of sexual minorities marginalized in democratic politics. A 1969 article urged gays and lesbians to “open up,” “[s]ay you’re gay at work, at home, church, wherever you go,” and to “[c]ome out from behind a double-life of straight at work and home, but gay at night.”[53] New organizations that formed in Stonewall’s wake advocated “being out.” The Gay Liberation Front held a “Coming Out” dance and organized a series of “out” actions like protesting and picketing.[54] Constituents were urged to take “[p]ride in . . . one’s homosexuality”—in contrast to the shame that society had long imposed.[55] Coming out became increasingly urgent in the 1980s as the community confronted the HIV/AIDS epidemic, with activists declaring that “SILENCE = DEATH.”[56]

Some activists turned to legal action as a mode of coming out. Same-sex marriage lawsuits in the 1970s were not primarily aimed at securing marriage rights for same-sex couples but instead at performing and publicizing gay sexuality at a time of deep closeting and stigma.[57] These lawsuits forced the state and the public to confront same-sex relationships. Although the courts were hostile,[58] they could not shut the claimants out. Even as they quickly dismissed the claims, courts supplied a site to protest conventional views of the family that excluded gays and lesbians and stigmatized their relationships.

C.

The practices of speaking out and coming out were innovated by politically marginalized groups contesting the criminalization of intimate life. For decades, federal and state Comstock laws made communications about topics like contraception, abortion, and homosexuality “obscene” and thus unspeakable.[59] Government censorship chilled public debate and internal movement discussions about the very subjects of the modern substantive due process cases. These groups also lacked the power to change the law. Women may be half the nation’s population, but after centuries of disfranchisement, at the time of Griswold and Roe, there were few women in government, politics, the judiciary, or the academy.[60] Although gay men had the vote, they were unable to exercise it to change the conditions facing sexual minorities. Given the relative powerlessness and the intense stigma afflicting the claimants in the modern substantive due process cases, it is not surprising that they eventually turned to courts. They were, in the terms of footnote four, facing “prejudice” that “curtail[ed] the operation of . . . political processes.”[61]

Women invoked both liberty and equality when challenging the criminalization of contraception and abortion.[62] In fact, women asserted equality claims in these settings before the Court had even recognized sex discrimination claims under the Equal Protection Clause.[63] Gays and lesbians challenging the criminalization of sodomy also asserted both liberty and equality claims.[64] The litigants in the modern substantive due process cases made clear how the legal prohibitions stigmatized them and limited their ability to participate in society.

Although the claimants’ initial appeals to judges failed, courts eventually recognized the rights claimants sought. Even when the Court ruled on substantive due process grounds, equality reasoning shaped its understanding of the rights at stake.[65] The conditions of structural inequality that confronted the claimants mattered to the Court’s recognition of the liberty claims it credited.

Seen from this perspective, the modern substantive due process cases implicate the kinds of concerns that justify judicial intervention in the Carolene Products framework. The Court’s substantive due process decisions from Griswold to Obergefell redressed deliberative blockages produced by political inequality and restrictions on speech. In providing some relief from generations of exclusion and censorship, the decisions supported the democratic integration of politically marginalized groups. Both Carolene Products footnote four and Ely himself recognized the democracy-promoting value of judicial review that protected freedom of speech.[66]

The injuries the Court redressed in its early substantive due process cases were not inflicted in only the deep past, but through ongoing practices of censorship that Americans across the political spectrum today would regard as unconstitutional.[67] Even as disagreement about whether the Constitution protects the practices at issue in the modern substantive due process cases persists, no one argues that discussion of those practices should be criminalized. In short, the substantive due process cases arose from a long, and long-forgotten, tradition of state action targeting political speech and censoring speech about intimate life. Obscenity laws, enforced and unenforced, chilled and stigmatized political organizing around intimate life and marked associated rights claims as unworthy of protection under the Constitution’s liberty and equality guarantees.[68]

*          *          *

The belief—shared by many on the left and the right, inside and outside the academy—that the modern substantive due process cases are not legitimate exercises of constitutional law no doubt reflects this century of censorship under federal and state obscenity law. But the belief also reflects the exclusion of women and out gay professors from law school faculties at the time the substantive due process cases were handed down and for decades after. Their absence shaped the decisions’ reception in two important ways. It elevated, as commentators on the decisions, scholars who had scant connection with Americans who had turned to courts for relief from the criminalization of their intimate lives. Because of this disconnect, scholars like Bork and Ely responded to the early substantive due process cases without addressing the role of obscenity law in restricting speech or political participation.

Worse, there was evident condescension in their treatment of the issues. In the 1970s and 1980s, Ely was unwilling to recognize the forms of bias that women and LGBTQ+ people faced and the different ways that the organization of the family can constrain democratic participation. His views were widespread in the legal academy of his day. When Ely was teaching at Harvard in 1980, there were only two women on the tenured faculty and no out gay members.[69] When he published his famous critique of Roe in 1973, he was a member of a Yale faculty that included only one tenured woman.[70]

Even as Ely’s Yale colleague Thomas Emerson was helping student co-authors write a “legislative history” for the Equal Rights Amendment,[71] Ely depicted women’s absence on the law faculty as an expression of women’s talents and choices. Declaring that “they’re not even a minority!,” Ely concluded that, “if women don’t protect themselves from sex discrimination in the future, it won’t be because they can’t. It will rather be because for one reason or another . . . they don’t choose to.”[72] In discussing whether laws banning abortion were constitutionally suspect, Ely minimized the fact that “very few women sit in our legislatures” by declaring that “no fetuses sit in our legislatures”—without pausing to explain how all-male legislatures were constitutionally adequate to represent either.[73] While Ely suggested that “homosexuals” may have plausible arguments for judicial review, he spoke of them in insensitive and stereotyped terms: “The reason homosexuals don’t say ‘Hold it, Lester, I’m gay, and my wrist’s not the least bit limp,’ is that because of the prejudices of many of the rest of us there would be serious social costs involved in such an admission.”[74] Ely would have known at the time that his attack on substantive due process implicated the situation of both women and gays and lesbians.[75] Not even considering whether these claims might have roots in political powerlessness and stigma (and so share certain properties with race discrimination claims) was just another way of expressing his resistance to considering whether the liberty claims of women and gays and lesbians were proper subjects for judicial review.

As the contempt heaped on the rights at stake and those who exercise them illustrates, such stigma persists and continues to shape the way Americans address these questions. If the stigma did not exist, we would talk about abortion rights as implicating many more people than we do. Nearly one in four women of childbearing age will have an abortion by age forty-five,[76] including mothers and Catholic women, who are just as likely as others to end a pregnancy.[77] If the stigma did not exist, the Court would speak more respectfully when overturning a constitutional right that it had recognized for half a century and that over 60 percent of the American public supported.[78] If the stigma did not exist, there would be more openly gay and lesbian elected officials.[79] Even today, three states, each of which has passed a series of anti-LGBTQ+ laws in recent years, have not a single openly gay or lesbian legislator.[80] Ten states have only one out LGBTQ+ legislator.[81]

To see the pervasive role that stigma continues to play in the status of LGBTQ+ people, one need only look at the treatment of trans people. Not until 2025 did Congress have an openly trans member. If the stigma did not persist, Congresswoman Sarah McBride would not have been greeted by a resolution banning trans women from women’s bathrooms in the Capitol—a resolution that the sponsoring lawmaker conceded was “absolutely” meant to target her new colleague.[82] If the stigma did not persist, the President would not declare that “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.”[83] If the stigma did not persist, the President would not describe gender-affirming healthcare as “chemical and surgical mutilation.”[84] If the stigma did not persist, states would not be prohibiting the discussion of gender identity in public schools.[85] These are just a few of the punitive actions that the government, at the federal, state, and local levels, is taking against trans people.

II.

To this point, we have addressed two critical features of the so-called Lochner objection. First, we challenged the assumption that claimants in modern substantive due process cases lack the legitimate claim on the Constitution and the courts that equal protection claimants have. We showed that the claimants in the modern substantive due process cases endured severe and persisting conditions of stigma and censorship that critics of the cases do not acknowledge. Second, we considered history showing that courts vindicating modern substantive due process claims were engaged in democracy-promoting judicial review in the framework of Carolene Products. We showed that the modern substantive due process cases are more structurally similar to equal protection cases than scholars have appreciated.

Why then was Ely so hostile to the substantive due process cases? In no small part, his attitude expressed condescension to the claimants and conduct at issue. Just as surely, it expressed mistrust of substantive due process law inherited from teachers who were New Deal critics of Lochner.

But Ely’s skepticism about substantive due process law also reflects his narrow understanding of democracy. He generally believed courts should defer to majoritarianism, though he is known for expanding Carolene Products into a theory of democracy-promoting judicial review. However important, his account of the forms of judicial review that would be democracy-promoting failed to appreciate how the regulation of reproduction, sex, and family structured participation in politics.

A.

The big idea in footnote four and in Ely’s elaboration is that judicial review becomes “democracy-reinforcing” when it imposes guardrails on majoritarianism that protect the conditions of deliberation, participation, and representation. Yet conventional accounts, including Ely’s, tend to conceive of the spheres that matter to democratic participation too narrowly, focusing on voting, media, and, perhaps, education. Here we suggest a few of the many reasons why the family is another domain critical to democratic participation.[86] The nation has long organized the family sphere as a gateway to politics. Laws regulating the conditions of reproduction, sex, and family therefore shape individuals’ ability to participate in politics.

For most of the nation’s history, a head of household was assumed to vote for its dependent members.[87] Men, in other words, virtually represented their wives. Women’s suffrage claims leading up to the Nineteenth Amendment constituted claims for “democratic reconstruction of the family.”[88]

The historic criminalization of sodomy constrained gays and lesbians’ ability to even form advocacy organizations for the purpose of petitioning their government or challenging their treatment in court.[89] This criminalization also justified the removal of gays and lesbians from educational institutions and workplaces and prevented legislative enactment of affirmative protections against discrimination in education, employment, housing, and public accommodations.[90] It is hard to imagine that one could be openly gay and hold elected office under such conditions. It is no surprise that Congress had no openly gay members until 1983.[91]

Family continues to structure political participation both directly and indirectly. Political norms rest on assumptions about ideal family roles. For this reason, individuals openly in same-sex relationships only recently have been appointed to serve in the Cabinet or elected to public office outside of a few select cities.[92] Additionally, today, caregivers struggle to acquire the material and social capital to build a career in politics. Women face not only resource-based challenges but also role-based limitations. For example, those seeking office face negative stereotypes in which pregnancy is seen as inconsistent with the roles of a political candidate or an elected official.[93]

B.

Democracy requires more than majoritarian procedures. It requires majoritarianism under certain background conditions. It requires procedures in which all adults have a meaningful opportunity to participate. And it requires that adults recognize the deliberations and procedures as open to their participation so that they can identify with the outcome even when they lose—or, at the very least, respect the outcome, on the understanding that they will have an opportunity to shape it in the near future.

Dobbs claimed that overruling Roe promoted democracy, quoting Ely in support as it did so.[94] The Court purported to “return the issue of abortion to the people’s elected representatives.”[95] But the Dobbs Court treats democracy as simple majoritarianism.[96] As if to underscore that point, the Court interpreted the Constitution’s guarantees of liberty and equality in light of decisions of the American electorate in an era when voters were prepared to deny women the right to vote and to practice law.[97] This is not democracy-promoting judicial review.

The Dobbs Court failed to appreciate how bias in the infrastructure of representation continues to this day.[98] As Judge Reeves noted in the trial court opinion in Dobbs, the Mississippi abortion law reflected:

[T]he old Mississippi—the Mississippi . . . that, just a few decades ago, barred women from serving on juries ‘so they may continue their service as mothers, wives, and homemakers.’ The Mississippi that, in Fannie Lou Hamer’s reporting, sterilized six out of ten black women in Sunflower County at the local hospital—against their will. And the Mississippi that, in the early 1980s, was the last State to ratify the 19th Amendment—the authority guaranteeing women the right to vote.[99]

Bare majoritarianism also seems an inadequate conception of democracy when looking at current conflicts over LGBTQ+ equality. The Supreme Court recently upheld bans on gender-affirming care for minors, which had been challenged on both substantive due process and equal protection grounds.[100] The Court claimed that it was simply keeping the issue where it belongs—leaving it “to the people, their elected representatives, and the democratic process.”[101] But the majority relegated the issue to legislative decision-making without attention to the long and deep exclusion of trans people from the political process. Indeed, even as the majority declared that “a Tennessee law banning certain medical care for transgender minors”[102] somehow “does not classify on the basis of transgender status”[103]—and hence, is presumably subject to rational basis review—it failed even to caution against equal protection prohibitions on state action motivated by animus.[104]

The dynamics of the closet that we observed with respect to earlier gay and lesbian organizing persist for trans people. The Tennessee legislature that passed the ban on gender-affirming care for minors had not a single openly trans member.[105] As of July 2025, a majority of states had laws banning minors’ access to gender-affirming care.[106] Collectively, the state legislatures that passed these bans included just four openly trans members—one in Montana and three in New Hampshire.[107]

Laws that restrict the rights of trans people impede their ability to participate in political life. Trans people face bans on bathroom access in public buildings, including the Capitol.[108] Laws prohibiting identity documents that match a trans person’s gender identity can make access to public life more challenging.[109] Laws restricting schools’ recognition of trans students’ gender identity can limit access to educational opportunities.[110] Today, states are passing laws to remove any discussion of gender identity from public schools.[111] And state legislatures have begun to repeal existing protections for trans citizens.[112] These laws stigmatize trans existence. In many places, it is dangerous to be out as trans.[113] Minors endure harassment and violence in their schools.[114] Trans people are doxxed.[115] Parents of trans children are shamed.[116] Under conditions of this kind, the democratic process hardly seems meaningfully open to trans participation.

III.

Once we appreciate that democracy entails more than majoritarianism, we can move beyond the commonplace assumption that judicial review is antidemocratic because it restricts legislative sovereignty and consider how courts interact with the democratic process.

Looking back at the history of substantive due process rights reminds us of the ways that democracies disrespect principles of equal participation and of the dynamics through which politically marginalized groups can resist domination by the majority. Majorities can, and often do, engage in acts of brutality against members of the polity—as headlines remind us today.[117] Dominated groups use practices of protest to challenge the majority’s intuitions of justice—as headlines remind us today.[118] In the United States, in the twentieth century at least, the practice of resistance has entailed continuing political struggle often accompanied by a turn to the courts. Predictably, early challenges fail. But, as resistance continues, some courts may prove more responsive than some majoritarian bodies. Rarely, if ever, has it been either-or; instead, it is both-and. Incremental advances can change conditions of participation in both politics and courts. Courts can enforce participation rights that open deliberation, voting, and governance, making majoritarianism more democratically legitimate. Under certain historical circumstances, these rights may help integrate marginalized groups into democratic politics.

Today, federal courts have largely abandoned this role. We are not living with the Court that gave us Brown, Griswold, or Roe—or even the Court that gave us Casey, Lawrence, or Obergefell. In recent years, the Court has increasingly favored majority-protective claims over minority-protective claims—for example, vindicating the claims of white applicants in anti-affirmative action cases and Christian plaintiffs in First Amendment cases.[119] Given this reality, is there any reason for liberals and progressives to turn to courts today?

The practice of judicial review is significant in both top-down and bottom-up ways. If a democracy’s legitimacy depends both on its structural features and on the public’s confidence in its openness to participation, then judicial review matters for two independent, if interdependent, reasons. What judges do matters. But so too does the public’s confidence in the openness of the system. Courts provide alternative fora in which groups can communicate to the polity and make claims. Courts have different institutional features than legislatures; they are more open to participation and are required to give reasons for their decisions.

In the current landscape, the turn to courts demands complex judgments. Advocates face questions about whether to litigate, as well as where and how to do so.[120] There may be reason not to litigate.[121] Given that the federal courts are increasingly populated by judges hostile to minority claimants, there may be reason to avoid federal court and instead litigate in state court.[122] In some circumstances, there may be reason to litigate in federal court while preparing for a loss and preparing to advocate from that loss in ways that amplify claims that groups have struggled to make audible in politics.[123] Of course, because courts can also disempower groups, advocates must consider whether, in light of all options, the turn to courts is productive.[124] In some circumstances, the potential costs of loss may be so high that it is worth extraordinary efforts to avoid federal courts.[125]

In the wake of Dobbs, for example, women advocating for abortion rights turned to state arenas. They worked not only in legislatures and on ballot measures but also in courts. And some state courts proved more open to women’s claims than federal courts or state political bodies.[126]

As contemporary abortion-rights advocacy demonstrates, litigants’ appeal to courts usually occurs in the midst of political struggle.[127] Rather than shutting down politics, judicial interventions shape and reshape political struggles.[128] Even when the claimants lose, the turn to courts can inject new voices into the community’s deliberations, place new questions onto the political agenda, and open opportunities in other institutional arenas.[129] Of course, a judicial defeat can also legitimate a group’s stigmatization in the eyes of the public.[130] From this bottom-up perspective, judicial review does not serve a settlement function but instead is a critical part of ongoing conflict. Advocates often have significant control. They can decide to avoid particular courts or claims. They can experiment with alternative fora. They may even be able to avoid conflict under certain circumstances. But they generally do not have the option of ending conflict without significant cost.

As much as some might want advocates to avoid courts and focus instead on democratic politics, we expect conflict to occur in both courts and politics, often simultaneously. David Strauss describes “competition among groups for victim status” as a “deep problem with judicial review today.”[131] “Nonminority ‘victims’ of affirmative action” and “members of mainstream religions,” Strauss explains, claim they “should be treated as if they are a ‘discrete and insular’ Carolene Products minority.”[132] This dynamic is not surprising. In countless struggles, we have seen majorities speak as minorities and appropriate liberal frames. For example, conservatives successfully mobilized colorblindness to counter civil rights advances.[133] Religious majorities mobilized “conscience” to roll back reproductive and LGBTQ+ rights.[134] We are skeptical that not going to court would alleviate the “competition among groups for victim status.”[135] Backlash and frame appropriation are simply part of movement-countermovement dynamics—features of conflicts in courts, as Strauss observes, as well as conflicts in politics.[136]

Conclusion

The modern substantive due process cases have been attacked as Lochner for so long that it is no longer clear what exactly the Lochner epithet means. “Lochner!” warns courts against intruding into democratic decision-making for reasons those who hurl the charge do not specify. But if one understands the roots of the modern substantive due process cases, one can appreciate how “Lochner!” perpetuates a history of outcasting. Of the many substantive due process cases, from incorporation[137] to parental rights[138] and punitive damages,[139] it is the line of cases beginning with Griswold, addressing sexual intimacy, reproduction, and the family, that prompts the Lochner objection. Robert Bork infused the Lochner objection with suggestions of sexual and judicial license, suggesting that a judge had “no principled way to decide that one man’s gratifications are more deserving of respect than another’s” and so lacked a principle “other than his own values upon which to set aside the community judgment embodied in the statute.”[140]

As we have shown, these cases were not, as so often alleged, antidemocratic, except in the simple sense that all exercises of judicial review may restrict majoritarianism. Once we recognize that democracy requires free and equal participation sufficient for participants to identify with outcomes even when they lose, it is clear that there are forms of judicial review that promote democracy, and others that inhibit it. The Griswold line of cases involved claimants whose causes had long been censored and vilified in ways that deformed the functioning of ordinary politics. Courts provided a forum where these claims could be voiced and recognized as compelling claims on the Constitution’s liberty guarantee. Courts did not take the claims “out of politics,” as is so often alleged. To the contrary, when courts opened their doors, they were acting in a Carolene Products democracy-promoting role, opening the doors to politics.[141]

Today, the substantive due process cases are well known, and yet this early history is utterly lost to memory. It may seem to many as if the history we recount has dissipated, and claimants can make their way in ordinary politics, without needing the recognition and respect that constitutional rights offer those asserting rights of religious freedom or self-defense. We disagree. We believe constitutional rights can and should be vindicated in courts and other arenas of democratic life; and in the case of the rights this Essay discusses, must be. We have pointed to clear evidence that the sexual stigma and political marginalization advocates once fought still haunts the claims[142]—and lives still at the root of “Lochner!”

Copyright © 2025 Douglas NeJaime* and Reva Siegel**

                 *     Anne Urowsky Professor of Law, Yale Law School.

                **   Nicholas deB. Katzenbach Professor of Law, Yale Law School. This Essay is part of the 2024–25 Brennan Center Jorde Symposium. We thank Seth Barrett, Jacob Hervey, Jonah Landsman, and Annika Russell for excellent research assistance.

          [1].     142 S. Ct. 2228, 2247–48 (2022).

          [2].     576 U.S. 644, 687, 703–04 (2015) (Roberts, C.J., dissenting).

          [3].     Lochner v. New York, 198 U.S. 45 (1905).

          [4].     See Laurence H. Tribe, American Constitutional Law 567 (2d ed. 1988) (“‘Lochnerizing’ has become so much an epithet that the very use of the label may obscure attempts at understanding.”). This is especially so given that both liberals and conservatives seem united in their repudiation of Lochner. See Jamal Greene, The Meming of Substantive Due Process, 31 Const. Comment. 253, 254 (2016).

          [5].     381 U.S. 479 (1965); 410 U.S. 113 (1973); 505 U.S. 833 (1992); 539 U.S. 558 (2003); 576 U.S. at 644.

          [6].     See, e.g., Bowers v. Hardwick, 478 U.S. 186, 194 (1986) (“The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.”); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 519 (1969) (Black, J., dissenting) (quoting Ferguson v. Skrupa, 372 U.S. 726, 730 (1963)) (“The doctrine that prevailed in Lochner . . . —that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded.”).

          [7].     For example, compare Chief Justice Roberts’s dissent in Obergefell with Yale Law School Professor Samuel Moyn’s critique of that same decision. Compare Obergefell, 576 U.S. at 694 (Roberts, C.J., dissenting) (“In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York.”), with Samuel Moyn, Resisting the Juristocracy, Bos. Rev. (Oct. 5, 2018), https://bostonreview.net/law-justice/samuel-moyn-resisting-juristocracy [https://perma.cc/U9YX-BQQT] (“[L]iberals have taken a long time to give up on black-robed power to enact their preferences. This was most notable in decisions around . . . so-called ‘substantive due process.’ . . . In cases ranging from Roe . . . to Obergefell . . . liberals entered an unholy alliance with Kennedy . . . to advance gay and women’s rights on a libertarian rationale . . . .”).

          [8].     Today, we view this equal protection claim in Brown as an obvious claim on the Constitution’s text. But at a time when Plessy v. Ferguson was still “good law,” the federal judge hearing an early equal protection challenge to racial segregation in K–12 education invoked Lochner to warn judges against deciding questions properly left to democratic politics. Briggs v. Elliott, 98 F. Supp. 529, 537 (E.D.S.C. 1951) (“The members of the judiciary have no more right to read their ideas of sociology into the Constitution than their ideas of economics.”). For discussion, see Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 113 (2023).

 [9].     The Essay builds on work we have previously co-authored, incorporating scholarship we have each produced since its publication and responding to developments of consequence in the intervening years. See Douglas NeJaime & Reva Siegel, Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy, 96 N.Y.U. L. Rev. 1902 (2021).

        [10].     381 U.S. at 515 (Black, J., dissenting).

        [11].     Compare id. at 482 (majority opinion) (“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.”), with id. at 516 (Black, J., dissenting) (criticizing the majority for drawing on “the same natural law due process philosophy which many later opinions repudiated”).

        [12].     Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 10 (1971); id. at 11–14 (condemning the Griswold line of cases by association with Lochner and distinguishing equal protection and Brown v. Board).

        [13].     See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 944 (1973) (reporting “assertions that the Court was indulging in sheer acts of will, ramming its personal preferences down the country’s throat—that it was, in a word, Lochnering”); id. at 947 (concluding that Roe is “a very bad decision. Not because it will perceptibly weaken the Court—it won’t . . . . It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”).

        [14].     United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (explaining that reasons for “more searching judicial inquiry” are even greater in those cases where “prejudice . . . tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities”).

        [15].     See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 77 (1980) (“[B]oth Carolene Products themes are concerned with participation: they ask us to focus not on whether this or that substantive value is unusually important or fundamental, but rather on whether the opportunity to participate either in the political processes by which values are appropriately identified and accommodated, or in the accommodation those processes have reached, has been unduly constricted.”).

        [16].     See id. at 105–34.

        [17].     See id. at 135–79.

        [18].     See id. at 18–21.

        [19].     Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2270 (2022) (quoting Ely, supra note 12, at 947) (“John Hart Ely famously wrote that Roe was ‘not constitutional law and g[ave] almost no sense of an obligation to try to be.’”).

        [20].     See id. at 2243.

        [21].     See id. at 2242–43, 2247–48. The Court invented the legal standard under which it overturned Roe, and its claims on the past were, errors aside, selective and transparently values driven. See, e.g., Reva B. Siegel, Democratizing Constitutional Memory, 123 Mich. L. Rev. 1011, 1017–21 (2025).

        [22].     Dobbs, 142 S. Ct. at 2301–02 (Thomas, J., concurring) (describing key substantive due process precedents as “demonstrably erroneous”).

        [23].     Griswold v. Connecticut, 381 U.S. 479 (1965).

        [24].     Lawrence v. Texas, 539 U.S. 558 (2003).

        [25].     Obergefell v. Hodges, 576 U.S. 644 (2015).

        [26].     See Ely, supra note 14, at 88 (arguing that “a representation-reinforcing approach to judicial review, unlike its rival value-protecting approach, is not inconsistent with, but on the contrary (and quite by design) entirely supportive of, the underlying premises of the American system of representative democracy”).

        [27].     United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

        [28].     Id.

        [29].     See James C. Mohr, Abortion in America: The Origins and Evolution of National Policy 226–27 (1979). For close analysis of the statutes enacted and enforced in this era, see Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 Stan. L. Rev. 1091, 1128–50 (2023). Tang analyzes the statutes as enacted, interpreted, and enforced at the time of the Fourteenth Amendment’s ratification and concludes that many more states preserved the common-law quickening rule than the Dobbs majority asserted. “Far from being a small minority—9 of the 37 states in the union, on the majority’s account—the best evidence suggests that as many as 21 states continued the longstanding common law quickening rule that existed at the Founding and for centuries before.” Id. at 1127.

        [30].     See An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use (Comstock Act), ch. 258, 17 Stat. 598 (1873) (codified as amended in scattered sections of 18, 19 & 39 U.S.C.) (prohibiting any person from selling or distributing in United States mail articles used “for the prevention of conception or procuring of abortion” or sending information concerning these practices as “obscene”).

        [31].     See Martha J. Bailey, “Momma’s Got the Pill”: How Anthony Comstock and Griswold v. Connecticut Shaped US Childbearing, 100 Am. Econ. Rev. 98, 101 (2010). For the text and history of Connecticut’s 1879 statute, see Tileston v. Ullman, 26 A.2d 582, 589–91 (Conn. 1942) (Avery, J., dissenting).

        [32].     Reva B. Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, 134 Yale L.J. 1068, 1141–42 (2025).

        [33].     See id. at 1090–91, 1108–09, 1114–48. Federal court decisions enforcing the Comstock Act in the 1930s recognized that, in many circumstances, mailings concerning sexual education, contraception, and abortion were not obscene but instead an integral part of health, and hence lawful. Most states applied this understanding of the Comstock Act to their own law. See id. at 1132–38. But Connecticut resisted. Poe v. Ullman and Griswold v. Connecticut were challenges to the state’s mini-Comstock law. In their Poe dissents, Justices Douglas and Harlan discussed the Comstock Act. Poe v. Ullman, 367 U.S. 497, 519–20 (1961) (Douglas, J., dissenting); id. at 527 n.3 (Harlan, J., dissenting). And the Court discussed Comstock case law during the oral argument of Griswold. See Siegel & Ziegler, supra note 31, at 1149–53.

        [34].     Siegel & Ziegler, supra note 31, at 1146–47; see also id. at 1147 (“Men who grew up under Comstock were more comfortable with inaction, unwilling publicly and expressly to permit practices that enabled Americans to separate sex and childbearing, preferring to leave them hidden and marked by law as obscene.”).

        [35].     See id. at 1140. For numbers across domains, see id. at 1140 n. 407.

        [36].     See, e.g., C. Thomas Dienes, The Progeny of Comstockery—Birth Control Laws Return to Court, 21 Am. U. L. Rev. 1, 44–121 (1971) (discussing the continuing impact of criminal laws restricting information about contraception and arguing for pathways courts could take to declare such laws unconstitutional); cf. Kenneth D. McCoy, Jr., Comment, Constitutionality of State Statutes Prohibiting the Dissemination of Birth Control Information, 23 La. L. Rev. 773, 774 (1963) (explaining that the Court “has yet to pass on the constitutional validity of state statutes regulating the dissemination of birth control information” and observing “state court decisions [that] upheld statutes limiting distribution of such information”). In 1972, in Eisenstadt v. Baird, the Court struck down a Massachusetts law that prohibited, among other things, providing information about access to contraception. 405 U.S. 438 (1972).

        [37].     See generally Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983) (ruling that company’s unsolicited mailing of advertisements that included informational pamphlets promoting contraception constituted commercial speech that the government could not constitutionally prohibit).

        [38].     Ellen Willis, Talk of the Town, New Yorker, Feb. 22, 1969, at 28.

        [39].     Id.

        [40].     See Reva B. Siegel, Roe’s Roots: The Women’s Rights Claims that Engendered Roe, 90 B.U. L. Rev. 1875, 1880, 1886, 1892–94 (2010) (describing “public speak-out[s]” beginning in 1969). These efforts escalated in the 1980s. See Brief for the Amici Curiae Women Who Have Had Abortions & Friends of Amici Curiae in Support of Appellees, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (No. 88-605); Brief for the Amici Curiae on behalf of the Nat’l Org. for Women; Hum. Rts. for Women, Inc.; Equal Rts. Advocs.; The League for Women Voters for the U.S.; Nw. Women’s L. Ctr.; Nat’l Women’s L. Ctr.; NOW Legal Def. & Educ. Fund; & Women’s Legal Def. Fund, Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986) (Nos. 84-495, 84-1379).

        [41].     See, e.g., Linda Greenhouse & Reva B. Siegel, The Unfinished Story of Roe v. Wade, in Reproductive Rights and Justice Stories 53, 61 (Melissa Murray, Katherine Shaw & Reva B. Siegel eds., 2019) (discussing legislative developments).

        [42].     See Sherie M. Randolph, “Not to Rely Completely on the Courts”: Florynce “Flo” Kennedy and Black Feminist Leadership in the Reproductive Rights Battle, 1969–1971, 27 J. Women’s Hist. 136, 140–45 (2015) [hereinafter Reproductive Rights Battle]. For a biography of this pathbreaking leader who was involved in many struggles of the civil rights era, see generally Sherie M. Randolph, Florynce “Flo” Kennedy: The Life of a Black Feminist Radical (2015).

        [43].     Randolph, Reproductive Rights Battle, supra note 41, at 140–42.

        [44].     See William N. Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880–1946, 82 Iowa L. Rev. 1007, 1011 (1997); William N. Eskridge, Jr., Privacy Jurisprudence and the Apartheid of the Closet, 1946–1961, 24 Fla. St. U. L. Rev. 703, 709 (1997) [hereafter Privacy Jurisprudence].

        [45].     See Eskridge, Privacy Jurisprudence, supra note 43, at 757.

        [46].     See Gregory Briker, The Right to Be Heard: ONE Magazine, Obscenity Law, and the Battle over Homosexual Speech, 31 Yale J.L. & Human. 49, 76 (2020) (quoting Internal Security Case Report on Mattachine Society, FBI Records: The Vault, pt. 1, at 22). As early as 1953, the FBI had infiltrated the Mattachine Society, the organization behind ONE. See Eskridge, Privacy Jurisprudence, supra note 43, at 755–56. By 1956, the FBI was attempting to effectively take down ONE, both by pursuing “obscenity” charges and by “notify[ing] employers of [people] who wrote for ONE . . . with the expectation that the homophiles would lose their jobs.” Id. at 757.

        [47].     See Briker, supra note 45, at 68–69.

        [48].     See ONE, Inc. v. Olesen, 355 U.S. 371, 371 (1958) (reversing the Ninth Circuit’s ruling in light of Roth v. United States, 354 U.S. 476 (1957)); see also Jason M. Shepard, The First Amendment and the Roots of LGBT Rights Law: Censorship in the Early Homophile Era, 1958-1962, 26 Wm. & Mary J. Race, Gender & Soc. Just. 599, 620–24 (2020) (describing the litigation at the district court and circuit court levels); Carlos A. Ball, Obscenity, Morality, and the First Amendment: The First LGBT Rights Cases Before the Supreme Court, 28 Colum. J. Gender & L. 229, 249–78 (2014) (situating the ONE decision within the Court’s changing approach to obscenity doctrine and its treatment of sexual matters).

        [49].     See Eskridge, Privacy Jurisprudence, supra note 43, at 757. The Supreme Court again confronted government censorship of “homosexuality” in 1962. See Manual Enters., Inc. v. Day, 370 U.S. 478, 481–82 (1962).

        [50].     See, e.g., Bottoms v. Bottoms, 457 S.E.2d 102, 107 (Va. 1995) (allowing removal of custody of a child from his lesbian mother in favor of the child’s grandmother and explaining that the trial court had asserted “that the mother’s conduct is ‘illegal,’ and constitutes a felony under the Commonwealth’s criminal laws”).

        [51].     See Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”).

        [52].     See Julie Compton, Meet the Lesbian Who Made Political History Years Before Harvey Milk, NBC News (Apr. 2, 2020), https://www.nbcnews.com/feature/nbc-out/meet-lesbian-who-made-political-history-years-harvey-milk-n1174941 [https://perma.cc/6QJ2-5M57] (explaining that the first openly lesbian or gay official was elected in 1974); Eric Lesh, Making Judicial History in California and the Importance of LGBT Judges, Lambda Legal (Dec. 21, 2012), https://www.lambdalegal.org/blog/making-judicial-history-in-california-and-the-importance-of-lgbt-judges [https://perma.cc/5J6V-A8FU] (noting that the first openly gay judge in the United States was appointed in California in 1979).

        [53].     Leo E. Laurence, Gay Revolution, Vector, Apr. 1969, at 11, 25; see also Simon Hall, Gay Liberation and the Spirit of ’68, in Reframing 1968: American Politics, Protest and Identity 227, 227–30 (Martin Halliwell & Nick Witham eds., 2018) (discussing how the gay rights movement was beginning to embrace “[a] more direct, confrontational style” of protest).

        [54].     Donn Teal, The Gay Militants 58–85 (1971).

        [55].     Id. at 75.

        [56].     See A Call to Action, in Out and Outraged: Non-Violent Civil Disobedience at the U.S. Supreme Court, Civil Disobedience Handbook, National March on Washington for Lesbian And Gay Rights 7, 8 (Nancy Alach, Karen Beetle, Laura Booth, Katherine Diaz, Eileen Hansen & Jessica Shubow eds., 1987); Douglas Crimp & Adam Rolston, AIDS Demo Graphics 13–14 (1990).

        [57].     See Michael Boucai, Glorious Precedents: When Gay Marriage Was Radical, 27 Yale J.L. & Human. 1, 4 (2015) (arguing that early same-sex marriage cases “had much more to do with gay liberation . . . than with gay marriage”).

        [58].     For example, in Kentucky, the judge sent one of the plaintiffs home because she was wearing pants: “She is a woman . . . and she will dress as a woman in this court.” Id. at 48 (quoting Stan MacDonald, Two Women Tell Court Why They Would Marry, Courier-J. (Louisville), Nov. 12, 1970, at A14).

        [59].     See Siegel & Ziegler, supra note 31, at 1131 (quoting John Dewey, who observed that “[i]t is the secrecy and nasty conditions under which sex information is obtained . . . that creates the idea that there is anything obscene” in The Sex Side of Life, an informational pamphlet subject to censorship and litigation in the 1930s).

 [60].     See History of Women in the U.S. Congress, Rutgers Ctr. for Am. Women & Pol., https://cawp.rutgers.edu/facts/levels-office/congress/history-women-us-congress [https://perma.cc/T8DU-LRKD] (showing only twelve women in Congress in 1968); Demography of Article III Judges, 1789–2020, Fed. Jud. Ctr., https://www.fjc.gov/history/exhibits/graphs-and-maps/gender [https://perma.cc/D765-E3M2] (showing only six women were federal judges in 1968); see also infra notes 67–68 (documenting lack of tenured women on Harvard and Yale law faculties in 1970s).

        [61].     United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

        [62].     See, e.g., Motion for Leave to File Brief for the Am. C.L. Union & the Conn. C.L. Union as Amici Curiae and Brief Amici Curiae at 16, Griswold v. Connecticut, 381 U.S. 479 (1965) (No. 496); Motion for Permission to File Brief and Brief Amicus Curiae on Behalf of New Women Laws., Women’s Health & Abortion Project, Inc., Nat’l Abortion Action Coal. at 25, Roe v. Wade, 410 U.S. 113 (1973) (Nos. 70-18, 70-40).

        [63].     See Siegel, Roe’s Roots, supra note 39, at 1889 (observing equality arguments against the criminalization of abortion “at a time when there was no heightened scrutiny for sex discrimination”).

        [64].     See, e.g., Brief Amicus Curiae for Lesbian Rts. Project, Women’s Legal Def. Fund, Equal Rts. Advocs., Inc., Women’s L. Project & Nat’l Women’s L. Ctr. at 23–24, Bowers v. Hardwick, 478 U.S. 186 (1986) (No. 85-140); Amicus Brief of Human Rts. Campaign et al. at 12–13, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102).

        [65].     See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992) (“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”); Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”).

        [66].     See Carolene Products, 304 U.S. at 152 n.4 (asserting that “[i]t is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation” and pointing specifically to “restraints upon the dissemination of information”); Ely, supra note 14, at 106 (“Courts must police inhibitions on expression and other political activity because we cannot trust elected officials to do so: ins have a way of wanting to make sure the outs stay out.”).

        [67].     See supra text accompanying notes 29–36 (discussing federal and state bans on dissemination of information about contraception that persisted into the 1970s and 1980s); Miller v. California, 413 U.S. 15, 24 (1973) (extending modern First Amendment protections to images and texts that state law deemed obscene); see also Manual Enters., Inc. v. Day, 370 U.S. 478, 480, 482 (1962) (holding that magazines containing “photographs of nude, or near-nude, male models” are not obscene because they “cannot be deemed so offensive on their face as to affront current community standards of decency”); ONE, Inc. v. Olesen, 355 U.S. 371, 371 (1958) (protecting “homophile” magazine); Roth v. United States, 354 U.S. 476, 487 (1957) (declaring that “sex and obscenity are not synonymous”). For Roth’s roots in Comstock litigation, see Siegel & Ziegler, supra note 31, at 1149.

        [68].     See Siegel & Ziegler, supra note 31, at 1142 (“Obscenity law helped mark public claims about sex and reproduction as obscene, dirty, shameful, and unworthy—as the expression of base animal impulse rather than liberty, conscience, or constitutional right.”).

        [69].     See Harvard Law School: 1980–1981 Catalog, Harv. L. Sch. (Sept. 2, 1981), at 2, 9–11, https://iiif.lib.harvard.edu/manifests/view/drs:427005593$11i [https://perma.cc/X7XT-UEYC] (faculty list containing two tenured women); William H. Honan, Elisabeth Owens, 79, Pioneer at Harvard Law, N.Y. Times (Nov. 20, 1998), at B11, https://www.nytimes.com/1998/11/20/us/elisabeth-owens-79-pioneer-at-harvard-law.html [https://perma.cc/3M7B-94CP] (“Tenure did not come easily for Professor Owens. Former students and faculty colleagues alike say she was denied it for years because of her sex.”).

        [70].     See Yale Law School Bulletin 1972–73, Yale L. Sch. (Aug. 1972), at 7–9, https://digital.library.yale.edu/catalog/17154506 [https://perma.cc/Y46B-VLCT] (faculty list containing one tenured woman); Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450, 480 (2020).

        [71].     Emerson, a renowned civil rights professor, co-authored a “legislative history” for the Equal Rights Amendment with Yale students and subsequently testified on the Amendment’s behalf. See Barbara A. Brown, Thomas I. Emerson, Gail Falk & Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.J. 872, 888–909 (1971).

        [72].     Ely, supra note 14, at 164, 169.

        [73].     Ely, supra note 12, at 933.

        [74].     See Ely, supra note 14, at 163.

        [75].     See Thomas C. Grey, Eros, Civilization and the Burger Court, 43 Law & Contemp. Probs. 83, 98–100 (1980) (appendix describing law review commentary on “[c]onstitutional [p]rivacy and [s]exual [f]reedom” and discussing litigation involving contraception and sodomy).

        [76].     See Rachel K. Jones & Jenna Jerman, Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008–2014, 107 Am. J. Pub. Health 1904, 1907 (2017) (finding that “an estimated 23.7% of women aged 15 to 44 years in 2014 will have an abortion by age 45”).

        [77].     Patrick T. Brown, Catholics Are Just As Likely to Get an Abortion As Other U.S. Women. Why?, Am.: Jesuit Rev. (Jan. 24, 2018), https://www.americamagazine.org/politics-society/2018/01/24/catholics-are-just-likely-get-abortion-other-us-women-why [https://perma.cc/N748-3KAM].

        [78].     See Majority of Public Disapproves of Supreme Court’s Decision to Overturn Roe v. Wade, Pew Rsch. Ctr. (July 6, 2022) (“62% of Americans say abortion should be legal in all or most cases, little changed since before the court’s decision.”). Dobbs speaks as a movement opinion and explains the decision to overturn Roe without acknowledging the competing views, concerns, and perspectives of those who support the abortion right. This is most visible in the many ways Dobbs calls into question women’s equal standing in the polity. Consider the Court’s discussion of reliance interests—the locus of equality reasoning in Casey. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992) (“The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”). Dobbs disparaged women’s reliance interests in a right that the Court had recognized for a half-century by describing a woman’s interest in controlling childbearing as “novel and intangible” and advised that courts were institutions better suited to protect “concrete reliance interests . . . in ‘cases involving property and contract rights.’” See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2276 (2022) (quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)).

        [79].     See Out for America 2021: A Census of LGBTQ Elected Officials Nationwide, LGBTQ+ Victory Inst. (2021), https://victoryinstitute.org/out-for-america-2021/ [https://perma.cc/PS2P-JC4Y] (finding that, even though LGBTQ+ people represent 5.6 percent of the U.S. adult population, only 0.19 percent of elected officials nationwide are LGBTQ+).

        [80].     See Out for America, State Legislature, LGBTQ+ Victory Inst., https://outforamerica.org/?office-level=State%20Legislature [https://perma.cc/Y4M5-7DPM] (showing Idaho, Louisiana, and Wyoming have no out LGBTQ+ state legislators).

        [81].     Id. (The states with only one LGBTQ+ state legislator are Alabama, Alaska, Arkansas, Kentucky, Indiana, Mississippi, South Carolina, South Dakota, Utah, and West Virginia.)

        [82].     Syedah Asghar & Rebecca Shabad, Rep. Nancy Mace Says Her Anti-Trans Bathroom Bill ‘Absolutely’ Targets Rep.-elect Sarah McBride, NBC News (Nov. 19, 2024), https://www.nbcnews.com/politics/congress/nancy-mace-defends-anti-trans-bathroom-bill-says-absolutely-targets-sa-rcna180805 [https://perma.cc/LUV4-A5MD].

        [83].     Exec. Order No. 14,183, 90 Fed. Reg. 8757 (Jan. 25, 2025).

        [84].     Exec. Order No. 14,187, 90 Fed. Reg. 8771 (Jan. 28, 2025).

        [85].     See, e.g., H.B. 1557, 2022 Leg., Reg. Sess. (Fla. 2022).

        [86].     For one classic statement, see Susan Moller Okin, Justice, Gender, and the Family 8 (1989) (showing how “the traditional, gender-structured family” produces gender-based inequality in politics and in the workplace).

        [87].     See Siegel, The Nineteenth Amendment, supra note 68, at 458 (“[W]omen, whether married or single, were represented by men.”). This understanding of the family continues to command widespread support. See Emma Cordover, Are Christian Nationalists Targeting Women’s Right to Vote?, Politico (Aug. 15, 2025), https://www.politico.com/newsletters/women-rule/2025/08/15/christian-nationalists-target-womens-right-to-vote-00511090 [https://perma.cc/7NWX-5TR8] (reporting on a 2024 study from the Public Religion Research Institute finding that a third of Americans support a gender-based model in which “the husband is the head of the household, and his wife submits to his leadership,” with majority support among “sympathizers” and “adherents” of Christian nationalism); id. (quoting Jared Longshore, a minister of Doug Wilson’s church, attended by Secretary of War Pete Hegseth, expressing support for the repeal of the Nineteenth Amendment and restoration of the time when “we had one vote per household . . . .”).

        [88].     Siegel, The Nineteenth Amendment, supra note 68, at 452.

        [89].     Cf. In re Thom, 350 N.Y.S.2d 1, 2 (App. Div. 1973) (reversing previous decision that had rejected “application for approval as a legal assistance corporation,” after receiving guidance from the state’s high court, but nonetheless refusing to approve organization’s goal of “promot[ing] legal education among homosexuals” and thus illustrating bureaucratic obstacles facing organizers).

        [90].     See Eskridge, Privacy Jurisprudence, supra note 43, at 733–57.

        [91].     See Damien Cave, Gerry Studds Dies at 69; First Openly Gay Congressman, N.Y. Times (Oct. 15, 2006), https://www.nytimes.com/2006/10/15/us/15studds.html [https://perma.cc/3ES5-ZC9T].

        [92].     See, e.g., Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 446–47 (Conn. 2008) (observing the lack of state and federal elected officials who are openly gay to support the proposition that “gay persons face unique challenges to their political and social integration”); David Shepardson, Pete Buttigieg Becomes First Openly Gay Cabinet Secretary Confirmed by U.S. Senate, Reuters (Feb. 2, 2021), https://www.reuters.com/article/us-usa-biden-transportation/pete-buttigieg-becomes-first-openly-gay-cabinet-secretary-confirmed-by-u-s-senate-idUSKBN2A22IQ [https://perma.cc/794H-Q8C8].

        [93].     See, e.g., Reva B. Siegel, The Pregnant Citizen, from Suffrage to the Present, 108 Geo. L.J. 167, 188 (2020) (“The social science research shows that pregnant women are negatively stereotyped, viewed as less competent and committed, and are less likely to be hired. This negative sex-role stereotyping extends to politics.”); id. (explaining that in a 2018 Pew Research Center survey, a majority of respondents indicated that a woman should have children before seeking high political office, while almost one in five indicated that a woman seeking high political office should not have children at all).

        [94].     See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2270 (2022) (quoting Ely, supra note 12, at 947) (“John Hart Ely famously wrote that Roe was ‘not constitutional law and g[ave] almost no sense of an obligation to try to be.’”).

        [95].     See id. at 2243. For a compelling critique, see Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 729 (2024) (The Dobbs Court’s “conception of democracy was both internally inconsistent and extraordinarily limited, even myopic . . . . [I]t reflected a distorted understanding of political power and representation—one that makes political power reducible to voting, entirely overlooking metrics like representation in electoral office and in the ecosystem of campaign finance.”).

        [96].     See Nelson Tebbe, Does Dobbs Reinforce Democracy?, 108 Iowa L. Rev. 2363, 2367 (2023) (arguing that the Dobbs Court, by “[a]ssuming a highly controversial conception of democracy, and then arguing that the decision promotes that one view, while ignoring other mainstream conceptions that not only do not support the decision but appear to be actively undermined by it, fails to meet basic standards of legal and political argumentation”).

        [97].     Siegel, The Roots of Dobbs’s Method, supra note 8, at 147.

        [98].     For an account of the many ways that racial and gender bias manifested in Mississippi voting at the time of Dobbs, see id. at 150–57.

        [99].     Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 540 n.22 (S.D. Miss. 2018) (citations omitted).

      [100].     United States v. Skrmetti, 145 S. Ct. 1816 (2025).

      [101].     Id. at 1837.

      [102].     Id. at 1824.

      [103].     Id. at 1833. The majority relied on Geduldig v. Aiello, until recently a largely discredited 1974 decision in which the Court held that a state insurance program that excluded pregnancy from coverage did not discriminate based on sex because it distinguished between “pregnant women and nonpregnant persons.” 417 U.S. 484, 496 n.20 (1974). Drawing on Geduldig, the Skrmetti majority reasoned that the Tennessee law “divides minors into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses”—that is, gender dysphoria, gender identity disorder, and gender incongruence—“and those who might seek puberty blockers or hormones to treat other conditions.” Skrmetti, 145 S. Ct. at 1833. Although “only transgender individuals seek puberty blockers and hormones for the excluded diagnoses,” the majority observed that “the second group encompasses both transgender and nontransgender individuals.” Id. Accordingly, the majority claimed to see no discrimination based on transgender status. The majority may have reasoned in this way to avoid ruling on whether transgender individuals constitute a suspect or quasi-suspect class—a question that Justices Thomas, Alito, and Barrett appeared eager to reach. Id. at 1860 (Alito, J., concurring in judgment) (“In my view, transgender status does not qualify under our precedents as a suspect or ‘quasi-suspect’ class.”); id. at 1855 (Barrett, J., concurring, joined by Thomas, J.) (“The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status.”). In her concurrence, Justice Barrett rejected the argument that transgender people constitute a quasi-suspect class in part based on her view that the claimants had failed to show a history of “de jure discrimination.” See id. at 1853. Countering Justice Barrett’s view, the dissent recognized that “[t]ransgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” Id. at 1881 (Sotomayor, J., dissenting).

      [104].     In concurrence, Justice Barrett recognizes that even if rational basis applies, an animus inquiry yet remains. See id. at 1853 (Barrett, J., concurring) (“To be sure, an individual law ‘inexplicable by anything but animus’ is unconstitutional.”).

      [105].     Out for America, State Legislature, Tennessee, LGBTQ+ Victory Inst., https://outforamerica.org/state/tennessee [https://perma.cc/X89D-UHFU].

      [106].     These states are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming. Bans on Best Practice Medical Care for Transgender Youth, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/healthcare_youth_medical_care_bans [https://perma.cc/P2VM-RTBA]; accord Map: Attacks on Gender Affirming Care by State, Hum. Rts. Campaign, https://www.hrc.org/resources/attacks-on-gender-affirming-care-by-state-map [https://perma.cc/Q2PU-FJ36].

      [107].     New Hampshire has an unusually large legislature—with 424 members, the largest among the states by far—which perhaps explains the unusually high number of trans representatives. About the Legislature in New Hampshire, New Futures, https://new-futures.org/about-the-nh-legislature [https://perma.cc/RCH7-P7XD].

      [108].     See Scott Skinner-Thompson, Transgender Disenfranchisement, 102 Wash. U. L. Rev. 1997, 2004 (2025); see also Asghar & Shabad, supra note 80.

      [109].     See Skinner-Thompson, supra note 106, at 2001–02.

      [110].     See id. at 2004.

      [111].     See, e.g., H.B. 1557, 2022 Leg., Reg. Sess. (Fla. 2022).

      [112].     See Mitch Smith, Iowa Lawmakers Pass Bill to Eliminate Transgender Civil Rights Protections, N.Y. Times (Feb. 27, 2025), https://www.nytimes.com/2025/02/27/us/iowa-transgender-civil-rights-bill.html [https://perma.cc/6B58-SV6F] (describing Iowa legislature removing protections for transgender individuals from state antidiscrimination laws nearly two decades after adding gender identity to such laws).

      [113].     See Ilan H. Meyer & Andrew R. Flores, Anti-LGBT Victimization in the United States: Results from the National Crime Victimization Survey (2022–2023), Williams Inst., UCLA Sch. L. (Feb. 2025), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Anti-LGBT-Violence-Feb-2025.pdf [https://perma.cc/CU6S-CYQC]; see also Andrew R. Flores, Ilan H. Meyer, Lynn Langton & Jody L. Herman, Gender Identity Disparities in Criminal Victimization: National Crime Victimization Survey, 2017–2018, 111 Am. J. Pub. Health 726, 727 (2021) (analysis showing that “[t]ransgender people experienced violence at a rate of 86.2 victimizations per 1000 persons compared with 21.7 per 1000 persons among cisgender people”).

      [114].     Allegra R. Gordon, Kerith J. Conron, Jerel P. Calzo, Matthew T. White, Sari L. Reisner & S. Bryn Austin, Gender Expression, Violence, and Bullying Victimization: Findings from Probability Samples of High School Students in 4 U.S. School Districts, 88 J. Sch. Health 306, 306 (2018) (“There was a significant linear relationship between gender expression and bullying victimization; every unit increase in gender nonconformity was associated with 15% greater odds of experiencing bullying.”).

      [115].     See Catherine Ilona Bevan, Jesaya Samuel Tunggal, Andy Zhang & Geoffrey Rockwell, The Gamergate Social Network: Interpreting Transphobia and Alt-Right Hate Online, 14(1) Digit. Stud./Le Champ Numérique 1, 18 (2024) (“[D]oxxing has a particularly painful relationship with trans people, as old ‘dead names’ can be dug up and smeared as part of the doxx.”); see, e.g., Megan Farokhmanesh, The End of Kiwi Farms, the Web’s Most Notorious Stalker Site, Wired (Sept. 8, 2022), https://www.wired.com/story/keffals-kiwifarms-cloudflare-blocked-clara-sorrenti [https://perma.cc/M3A6-TEW2] (describing Kiwi Farms, an online community known for stalking, harassing, and doxxing, with users “known to single out transgender . . . people”).

      [116].     See Shon Faye, ‘I Feel Like It’s Quite a Shaky Acceptance’: Trans Kids and the Fight for Inclusion, Guardian (Aug. 24, 2021), https://www.theguardian.com/society/2021/aug/24/shaky-acceptance-transgender-kids-families-fight-for-inclusion [https://perma.cc/83TH-4CJH] (“[S]imilarities between the various accounts of parents with trans children attracts criticism from those commentators who argue that trans children do not exist or should not be affirmed in their gender.”); see also Jo Yurcaba, ‘Our State is Terrorizing Us’: Texas Families of Transgender Kids Fight Investigations, NBC News (Mar. 9, 2022), https://www.nbcnews.com/nbc-out/out-news/-state-terrorizing-us-texas-families-transgender-kids-fight-investigat-rcna19282 [https://perma.cc/KT94-KKU3] (Texas Governor Greg Abbott called on “‘members of the general public’ to report the parents of transgender minors to state authorities if it appears the minors are receiving such [gender-affirming] care”).

      [117].     Cf. Mohsin Alam Bhat, Majoritarianism, in Oxford Handbook of Law & Authoritarianism (Cora Chan, Madhav Khosla, Benjamin Liebman & Mark Tushnet eds.) (forthcoming 2025) (manuscript at 1–2) (arguing that “majoritarianism becomes a democratic problem when majorities . . . become entrenched on racial, ethnic or religious grounds” and that, under these conditions, “[m]ajoritarianism grants members of the majority privileges over government, simply by virtue of belonging. For minorities, this produces and entrenches ‘structures of domination,’ hindering full participation in public life . . . . It paves the way for oppression through ‘exploitation, marginalization, powerlessness, cultural imperialism, and violence’”).

      [118].     See, e.g., Renee Hickman & Heather Schlitz, Chicago Protestors Defiant in Face of Trump’s Deportation Threats, Reuters (Sept. 8, 2025), https://www.reuters.com/world/us/chicago-protesters-defiant-face-trumps-deportation-threats-2025-09-06 [https://perma.cc/8G7B-XMR3].

      [119].     See, e.g., Students for Fair Admissions v. President & Fellows of Harvard Coll., 143 , S. Ct. 2141, 2168–69 (2023) (asserting that “an individual’s race may never be used against him in the admissions process” while observing “that Harvard’s ‘policy of considering applicants’ race . . . results in fewer Asian American and white students being admitted”); 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2309 (2023) (holding that the First Amendment’s Free Speech Clause protects a website designer, whose “religious conviction” is that “marriage is a union between one man and one woman,” from being compelled to design a wedding website for a same-sex couple). On this point, see Leah M. Litman, Disparate Discrimination, 121 Mich. L. Rev. 1, 11 (2022) (“[T]he Court’s equal protection cases have now made it easier for white plaintiffs to succeed on racial discrimination claims than for racial minorities to do so, just as the Court’s free exercise cases have made it easier for conservative Christian groups to succeed on religious discrimination claims than for other, more minority religions to do so.”); Reva B. Siegel, Foreword, Equality Divided, 127 Harv. L. Rev. 1, 29–38 (2013) (showing how majority-protective equal protection reasoning in the affirmative action context is more responsive to majority groups’ sense of fairness than the Court’s minority-protective caselaw is responsive to minority groups’ sense of fairness).

      [120].     See Douglas NeJaime, Before Losing, 135 Yale L.J.F. 63, 93 (2025) (“[D]ecisions about how to litigate are often as important as decisions about whether to litigate in the first place. Advocates must determine where to file suit (e.g., in federal or state court), what claims to bring (e.g., federal or state claims, constitutional or statutory claims), and how to proceed (e.g., whether to appeal an adverse judgment, whether to petition for certiorari).”).

      [121].     See Duncan Hosie, Resistance Through Restraint: Liberal Cause Lawyering in an Age of Conservative Judicial Hegemony, 111 Corn. L. Rev. (forthcoming 2026) (manuscript at 17) (recommending “in response to current political and legal conditions” that liberals and progressives engage in “wholesale abandonment of initiating ideologically salient federal litigation except in rare, carefully circumscribed circumstances”).

      [122].     See NeJaime, supra note 118, at 94–98; Douglas NeJaime, The Legal Mobilization Dilemma, 61 Emory L.J. 663, 683–85 (2012).

      [123].     See Douglas NeJaime, Winning Through Losing, 96 Iowa L. Rev. 941, 988–89 (2011) (identifying how, in some circumstances, advocates may use litigation loss productively to speak to actors in other institutional arenas and at other levels of government).

      [124].     Litigation loss can send signals, with cascading effects. See Catherine Albiston, The Dark Side of Litigation as a Social Movement Strategy, 96 Iowa L. Rev. Bull. 61, 70 (2011) (“[L]osing a case can delegitimize [a group’s] cause, marking it as beyond the protections and recognition of the law.”). Or it may introduce adverse changes in the law, with cascading effects. See NeJaime, supra note 118, at 73–81.

      [125].     See Hosie, supra note 119 (manuscript at 5) (urging “a calculated disengagement from the Supreme Court and federal appeals courts aimed at denying these bodies vehicles to further develop conservative constitutional doctrine”).

      [126].     See Reva B. Siegel, The Levels-of-Generality Game: “History and Tradition” in the Roberts Court, 47 Harv. J.L. & Pub. Pol’y 563, 608–10 (2024) (detailing state court decisions reasoning about abortion bans in ways that are attentive to the “anti-democratic biases” of the Dobbs Court’s history-and-tradition analysis).

      [127].     A vast literature on legal mobilization and cause lawyering illustrates. See, e.g., Michael W. McCann, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization 138 (1994) (observing the “leveraging capacity of legal action” in political conflict over pay equity); Scott L. Cummings, Hemmed In: Legal Mobilization in the Los Angeles Anti-Sweatshop Movement, 30 Berkeley J. Emp. & Lab. L. 1, 6 (2009) (in a study of labor organizing in Los Angeles, situating court-based tactics within “broader campaigns to stimulate collective action and leverage political reform”).

      [128].     See, e.g., Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 399 (2007) (“Judicial review limits, channels, and amplifies democratic politics.”); Reva B. Siegel, How Conflict Entrenched the Right to Privacy, 124 Yale L.J.F. 316, 319 (2015) (showing how Supreme Court decisions and subsequent “political conflict over those decisions” entrenched the right to privacy).

      [129].     See, e.g., NeJaime, supra note 121, at 988 (“In the wake of a litigation loss, advocates might shift venues at the same time that they use the loss to render more compelling the appeal to decision makers in these new venues.”); Reva B. Siegel, Community in Conflict: Same-Sex Marriage and Backlash, 64 UCLA L. Rev. 1728, 1747–48 (2017) (“Court decisions made claims for same-sex marriage visible and audible; for better or for worse, court decisions put same-sex marriage on the public agenda at a time when legislators would not do so.”). Litigation can amplify the voices of the disempowered, much as petitioning once did. On petitioning, see Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1547 (2018).

      [130].     See NeJaime, supra note 118, at 85.

      [131].     David A. Strauss, Polarization, Victimization, and Judicial Review, 113 Calif. L. Rev. 2155, 2156 (2026).

      [132].     Id. 2156.

      [133].     See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1519 (2004) (“In the 1960s, as courts began to reason about desegregation in terms that focused on the wrongs of racial classification, plaintiffs objecting to race-conscious measures designed to achieve ‘racial balance’ in public schools expressed their objections in the language of colorblindness.”).

      [134].     See Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2553 (2015) (“Without change in numbers or belief, religious actors can shift from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that offend traditional morality.”).

      [135].     Strauss, supra note 129, at 2156.

      [136].     See, e.g., Siegel, Community in Conflict, supra note 127, at 1747 (“[T]he conflicts we call backlash are by no means caused by courts alone.”); Siegel, supra note 117, at 75 (“Backlash arcs across the decades because there are natural incentives in democratic politics to appeal to those aggrieved by change, whether change transpires by judicial decision, the great civil rights statutes of the 1960s, or the efforts of local government to ensure a modicum of integration in basic social institutions.”); Scott L. Cummings & Douglas NeJaime, Lawyering for Marriage Equality, 57 UCLA L. Rev. 1235, 1318–25 (2010) (criticizing “judicial exceptionalism” in accounts of backlash by showing how legislative decisions on marriage equality would and did provoke effective backlash).

      [137].     See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)) (in applying the Second Amendment to the states, holding that the “right to keep and bear arms is incorporated in the concept of due process” because it is “fundamental to our scheme of ordered liberty” and “‘deeply rooted in this Nation’s history and tradition’”).

      [138].     See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (“While this court has not attempted to define with exactness the liberty thus guaranteed [by the Fourteenth Amendment], . . . [w]ithout doubt, it denotes . . . the right of the individual . . . to . . . establish a home and bring up children . . . .”).

      [139].     See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996) (quoting TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443, 454 (1993)) (“The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a ‘grossly excessive’ punishment on a tortfeasor.”).

      [140].     Bork, supra note 11, at 10.

      [141].     To take but one example: Robert Bork’s nomination to the Supreme Court was defeated in major part because of the public’s overwhelming repudiation of his attack on Griswold and the constitutional right to privacy. See Siegel, How Conflict Entrenched the Right to Privacy, supra note 126, at 320–21.

      [142].     See supra notes 58–66 and accompanying text.