470
Scalia, J., concurring in judgment
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
The jury in this case was instructed on the purposes of punitive damages under West Virginia law, and its award was reviewed for reasonableness by the trial court and the West Virginia Supreme Court of Appeals. Traditional American practice governing the imposition of punitive damages requires no more. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 15 (1991); id., at 26-27 (Scalia, J., concurring in judgment). It follows, in my view, that petitioner's claims under the Due Process Clause of the Fourteenth Amendment must fail. See id., at 31. I therefore have no difficulty joining the Court's judgment.
I do not, however, join the plurality opinion, since it makes explicit what was implicit in Haslip: the existence of a so-called "substantive due process" right that punitive damages be reasonable, see ante, at 458.* I am willing to accept the proposition that the Due Process Clause of the Fourteenth Amendment, despite its textual limitation to procedure, incorporates certain substantive guarantees specified in the Bill of Rights; but I do not accept the proposition that it is the secret repository of all sorts of other, unenumerated, substantive rights—however fashionable that proposition may have been (even as to economic rights of the sort involved here) at the time of the Lochner-era cases the plural-*Justice Stevens asserts that there is a difference between the constitutional standard that he today proposes, which he describes as "grossly excessive" (a term used in one of the Lochner-era cases he relies upon, Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 111 (1909)), and the standard of "reasonableness" that state courts have traditionally applied. Ante, at 458-459, n. 24. I doubt whether there is a difference between the two. As Justice O'Connor points out, see post, at 476-478, state courts often used terms like "grossly excessive" to describe the sort of award that could not stand. But if there is a difference, then one must wonder—since it is not based upon any common-law tradition— where the standard of "grossly-excessive-that-means-something-even-worse-than-unreasonable" comes from.
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