In terms of the meaning of procedural due process, I agree with Justice Benjamin Curtis, as quoted by Black, and I disagree with Black's explicit rejection of Curtis's interpretation, as well as his overly narrow interpretation of procedural due process. Prof. John Hart Ely had some excellent discussion of this topic in his famous book
Democracy and Distrust.
Even if the Due Process Clause were restricted to its proper role of guaranteeing fair procedures, that would not make it unimportant. For even if it lacks authority to second-guess the substantive policy being pursued, the Court can still render the implementation of that policy difficult by making the procedural requirements comparatively stringent. What's more, its judgement here is also somewhat untethered: asking what process is due will get the Court into some questions to which the Constitution does not begin to provide answers. ... It is true that in deciding what process is due the Court will have to take into account various costs, principally in money and time, that the Constitution will not help us assess. But that is hardly unique to due process. And the questions that are relevant here -- how seriously the complainant is being hurt and how much it will cost to give him a more effective hearing -- are importantly different from the question the Court makes relevant in "substantive due process" decisions like Lochner and Roe, namely how desirable or important the substantive policy the legislature has decided to follow is. Moreover ... the decisions here are made in limited compass. The question is what procedures are required to treat the complainant this way, not whether the complainant can be treated this way at all: it's an important and difficult question, but a more limited one. Finally, what procedures are needed fairly to make what decisions are the sorts of questions lawyers and judges are good at. (Observe a lawyer on a committee with nonlawyers and see what role he or she ends up playing.) Thus the delegation, though assuredly it is that, is a limited and not terribly frightening one.
But in the case of
In Re Winship, Justice Black was absolutely terrified of letting the courts exercise that much discretion. I believe it terrified him as much as it did because he still had cases such as
Griswold v. Connecticut and
Harper v. Virginia Board of Election on his mind. I think the Court majority's willingness to get rambunctious with the Bill of Rights in
Griswold and with the Equal Protection Clause in
Harper worried Black a whole lot for the rest of his days on the Court, and his worrying about that was why he came to the conclusion that he did in
Winship.
