Cite as: 507 U. S. 292 (1993)
Stevens, J., dissenting
("We have always been careful not to 'minimize the importance and fundamental nature' of the individual's right to liberty") (quoting United States v. Salerno, 481 U. S. 739, 750 (1987)).
I am not as convinced as she, however, that "the Court today does not hold otherwise." Ante, at 315 (concurring opinion). For the children at issue in this case are being confined in government-operated or government-selected institutions, their liberty has been curtailed, and yet the Court defines the right at issue as merely the "alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution." Ante, at 302. Finding such a claimed constitutional right to be "nove[l]," ante, at 303, and certainly not "fundamental," ante, at 305, 311, the Court concludes that these juveniles' alleged "right" to be released to "other responsible adults" is easily trumped by the government's interest in protecting the welfare of these children and, most significantly, by the INS' interest in avoiding the administrative inconvenience and expense of releasing them to a broader class of custodians. Ante, at 305, 311-312.
In my view, the only "novelty" in this case is the Court's analysis. The right at stake in this case is not the right of detained juveniles to be released to one particular custodian rather than another, but the right not to be detained in the first place. "In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Salerno, 481 U. S., at 755. It is the government's burden to prove that detention is necessary, not the individual's burden to prove that release is justified. And, as Justice O'Connor explains, that burden is not easily met, for when government action infringes on this most fundamental of rights, we have scrutinized such conduct to ensure that the detention serves both "legitimate and com-
341
Page: Index Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 NextLast modified: October 4, 2007