Albright v. Oliver, 510 U.S. 266, 10 (1994)

Page:   Index   Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Cite as: 510 U. S. 266 (1994)

Scalia, J., concurring

We express no view as to whether petitioner's claim would succeed under the Fourth Amendment, since he has not presented that question in his petition for certiorari. We do hold that substantive due process, with its "scarce and open-ended" "guideposts," Collins v. Harker Heights, 503 U. S., at 125, can afford him no relief.7

The judgment of the Court of Appeals is therefore

Affirmed.

Justice Scalia, concurring.

One can conceive of many abuses of the trial process (for example, the use of a patently biased judge, see Mayberry v. Pennsylvania, 400 U. S. 455, 465-466 (1971)) that might cause a criminal sentence to be a deprivation of life, liberty or property without due process. But here there was no criminal sentence (the indictment was dismissed), and so the only deprivation of life, liberty or property, if any, consisted of petitioner's pretrial arrest. I think it unlikely that the procedures constitutionally "due," with regard to an arrest, consist of anything more than what the Fourth Amendment specifies; but petitioner has in any case not invoked "procedural" due process.

Except insofar as our decisions have included within the Fourteenth Amendment certain explicit substantive protections of the Bill of Rights—an extension I accept because it is both long established and narrowly limited—I reject the proposition that the Due Process Clause guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures as a prerequisite to deprivation of liberty. See TXO Production Corp. v. Alliance Resources Corp., 509 U. S.

7 Petitioner appears to have argued in the Court of Appeals some variant of a violation of his constitutional right to interstate travel because of the condition imposed upon him pursuant to his release on bond. But he has not presented any such question in his petition for certiorari and has not briefed the issue here. We therefore do not consider it.

275

Page:   Index   Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: October 4, 2007