Passively Virtuous Parental Rights

Emily Buss*

This Article tells the survival story of Meyer and Pierce. It suggests that the constitutional protection of parental rights has been well served by what is often perceived as judicial neglect but might be more charitably understood as the Court’s successful exercise of the “passive virtues” championed by Alexander Bickel.⁷ These virtues, he counseled, serve as an important mechanism restraining the heavy hand of judicial review, leaving more room for the legitimizing force of democratic lawmaking.⁸ After describing the firm-but-light hand the Court has applied to its development of parental rights and contrasting it to the heavy-handed approach the Court has taken in its development of other rights under the substantive due process doctrine, the Article closes with a brief consideration of the recent onslaught of federal parental-rights litigation, and the threat this may pose to the value achieved through the Court’s restrained approach to parental rights. The goal, on this 100th anniversary of Pierce, should be to continue the practice of granting certiorari only rarely, choosing wisely, and saying only what is necessary to preserve the broad outlines of the rights’ protection.

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© 2025 Emily Buss. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Mark and Barbara Fried Professor of Law at the University of Chicago Law School. Thanks to Hana Nasser and Jesse Berns-Zieve for their excellent research assistance and to the Mark and Barbara Fried Fund for its generous support of this research.

7 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 111–98, 201 (2d ed. 1962).

8 See id. at 197–98.