116
Thomas, J., dissenting
Court today ignores this well-established analytical framework. First, the Court never explains whether we are dealing here with a fundamental right, and, if so, what right. Second, the Court never discloses what standard of review applies. Indeed, the Court's opinion is contradictory on both these critical points.
As to the first point: The Court begins its substantive due process analysis by invoking the substantive right to "[f]reedom from bodily restraint." Ante, at 80. Its discussion then proceeds as if the problem here is that Foucha, an insanity acquittee, continues to be confined after recovering his sanity, ante, at 80-81; thus, the Court contrasts this case to United States v. Salerno, 481 U. S. 739 (1987), a case involving the confinement of pretrial detainees. But then, abruptly, the Court shifts liberty interests. The liberty interest at stake here, we are told, is not a liberty interest in being free "from bodily restraint," but instead the more specific (and heretofore unknown) "liberty interest under the Constitution in being freed from [1] indefinite confinement [2] in a mental facility." Ante, at 82 (emphasis added). See also ante, at 86-87 (O'Connor, J., concurring in part and concurring in judgment). So the problem in this case is apparently not that Louisiana continues to confine insanity acquittees who have "become" sane (although earlier in the opinion the Court interprets our decision in Jones as having held that such confinement is unconstitutional, see ante, at 77-78), but that under Louisiana law, "sane" insanity acquit-tees may be held "indefinitely" "in a mental facility."
As to the second point: "A dispute regarding the appropriate standard of review may strike some as a lawyers' quibble over words, but it is not." Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 610 (1990) (O'Connor, J., dissenting). The standard of review determines when the Due Process Clause of the Fourteenth Amendment will override a State's substantive policy choices, as reflected in its laws. The Court initially says that "[d]ue process requires that the na-
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