Other evidence, however, raises questions in my (perhaps feeble) mind. For example, his opinion in Browder v. City of Albuquerque uses a substantive due process argument to reach the decision. The opinion states:
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The Supreme Court has interpreted this language as guaranteeing not only certain procedures when a deprivation of an enumerated right takes place (procedural due process), but also as guaranteeing certain deprivations won’t take place without a sufficient justification (substantive due process). Some suggest this latter doctrine with the paradoxical name might find a more natural home in the Privileges and Immunities Clause; others question whether it should find a home anywhere in the Constitution. But, the Supreme Court clearly tells us, home it has and has where it is. At the same time, the Court has warned that the doctrine should be applied and expanded sparingly “because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)) (internal quotation mark omitted). [emphasis added]
This is not a resounding repudiation of substantive due process. On the other hand, the opinion seems to be saying: "Hey, whatever our personal opinions may be on the use of substantive due process arguments, we must allow such arguments if we are required to allow them by the SCOTUS."
If I were Trump, I would require Judge Gorsuch to provide me with a written description of his judicial views on the use of substantive due process arguments in the cases Roe v Wade and Obergefell.
Judge Gorsuch is 49 years old and replacing Judge Scalia, a staunch advocate of originalism and ferocious opponent of the use of substantive due process arguments. Trump needs to make sure that he is actually appointing some one with similar views, especially when that individual is going to sit on the Court for decades.
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