Tribe on Roe v. Wade

“UNLIKE Yeats’ “rough beast, its hour come round at last,” substantive due process may yet enjoy an auspicious second coming. For the Supreme Court’s 1972 Term points the way toward a conception of substantive due process that may avoid the fate of that doctrine’s earlier incarnation in American constitutional law. This Foreword will venture a tentative exploration of the “widening gyre” implicit in several of the Court’s recent decisions.”

“Roe AND Rodriguez: THE CHALLENGE Last year in these pages, Gerald Gunther proposed a revitalized enforcement of the constitutional requirement that legislative means substantially further legislative ends. For the pragmatic reason that “due process carries a repulsive connotation of value-laden intervention for most of the Justices, of the Burger Court as well as the Warren Court,” Professor Gunther suggested that the inquiry could “best be carried forward under the banner of equal protection than due process . . . .” But in San Antonio Independent School District v. Rodriguez, its major opportunity this Term to scrutinize a means-end relationship.”