Log Cabin Republicans v. U.S., 658 F.3d 1162 (9th Cir. 2011)

The 9th Circuit panel ruling on the enforcement of the military use of a “Don’t Ask, Don’ Tell” polilcyi was dismissed on ground the lawsuit had been rendered moot by other sources.  Nevertheless, a concurring judge wrote a scholarly and neutral opinion outlining the role of he judiciary in resolving issues of “Due Process.”  Elegantly phrased he said this. 

“The [Supreme] Court has imposed  … dual limitations on substantive due process analysis to preserve the fiduciary’s proper role in the constitutional structure. “[E]xtending constitutional protection to an asserted right or liberty interest … to a great extent[ ] place[s] the matter outside the arena of public debate and legislative action.” (cite omitted). Whenever the Court expands the concept of substantive due process, moreover, it risks “subtly transform[ing]” the liberty protected by the due process clause to “the policy preferences of the Members of th[e] Court.”

      In short, when confronted with assertions of new fundamental rights, rather than invite innovation the Court has counseled caution. The Court has developed a trusted method reflecting that caution. And while the Court has on occasion departed from its established method, it has not licensed lower courts to do so. Most important, when a right is not rooted in our constitutional text, traditions, or history, our authority as judges is at its end. We must then leave the task of identifying and protecting new rights where the Constitution leaves it—with the political branches and the people.”
This truncated statement applies to cases previously decided by the 9th Circuit on policy grounds, not Constitutional predicates.  The Supreme Court has repeatedly denounced judicial attempts to expand the role of equal protection and due process not only in discovering new “liberty interests” but in countless other
cases has reversed the 9th Circuit for expanding Constitutional rights. In fact, the Supreme Court reviewed the role of federal courts and the extent of “due process” as early as in a 1997 case reversing the 9th Circuit; Washington v. Glucksberg,  521 U.S.7 02 (1997 ).