454
O'Connor, J., concurring in judgment
historical practice to consider. The same is true of the new administrative regime established by the federal criminal sentencing guidelines, and I have agreed that Mathews may be helpful in determining what process is due in that context. See Burns v. United States, 501 U. S. 129, 147-148 (1991) (Souter, J., dissenting). While I agree with the Court that historical pedigree can give a procedural practice a presumption of constitutionality, see Patterson v. New York, 432 U. S. 197, 211 (1977), the presumption must surely be rebuttable.
The concept of due process is, "perhaps, the least frozen concept of our law—the least confined to history and the most absorptive of powerful social standards of a progressive society. But neither the unfolding content of 'due process' nor the particularized safeguards of the Bill of Rights disregard procedural ways that reflect a national historic policy." Griffin v. Illinois, 351 U. S. 12, 20-21 (1956) (Frankfurter, J., concurring in judgment). Against the historical status quo, I read the Court's opinion to allow some weight to be given countervailing considerations of fairness in operation, considerations much like those we evaluated in Mathews. See ante, at 448-453. Any less charitable reading of the Court's opinion would put it at odds with many of our criminal due process cases, in which we have required States to institute procedures that were neither required at common law nor explicitly commanded by the text of the Constitution. See, e. g., Griffin v. Illinois, supra (due process right to trial transcript on appeal); Brady v. Maryland, 373 U. S. 83 (1963) (due process right to discovery of exculpatory evidence); Sheppard v. Maxwell, 384 U. S. 333 (1966) (due process right to protection from prejudicial publicity and courtroom disruptions); Chambers v. Mississippi, 410 U. S. 284 (1973) (due process right to introduce certain evidence); Gagnon v. Scar-pelli, 411 U. S. 778 (1973) (due process right to hearing and counsel before probation revoked); Ake v. Oklahoma, supra (due process right to psychiatric examination when sanity is significantly in question).
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007