Cite as: 512 U. S. 26 (1994)
Scalia, J., concurring in judgment
called fundamental rights, such as the right to structure family living arrangements, see Moore v. East Cleveland, 431 U. S. 494 (1977) (plurality opinion), and the right to an abortion, see Roe v. Wade, 410 U. S. 113 (1973). First and most obviously, where respondent's claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id., at 150, 162. Secondly, when it is pointed out that the Court's retroactive-tax ruling today is inconsistent with earlier decisions, see, e. g., Nichols v. Coolidge, 274 U. S. 531 (1927); Blodgett v. Holden, 275 U. S. 142 (1927); Untermyer v. Anderson, 276 U. S. 440 (1928), the Court dismisses those cases as having been "decided during an era characterized by exacting review of economic legislation under an approach that 'has long since been discarded.' " Ante, at 34, quoting Ferguson v. Skrupa, 372 U. S. 726, 730 (1963). But economic legislation was not the only legislation subjected to "exacting review" in those bad old days, and one wonders what principled reason justifies "discarding" that bad old approach only as to that category. For the Court continues to rely upon "exacting review" cases of the Nichols-Blodgett-Untermyer vintage for its due process "fundamental rights" jurisprudence. See, e. g., Roe, supra, at 152-153, 159 (citing Meyer v. Nebraska, 262 U. S. 390, 399 (1923), and Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925)); see also Griswold v. Connecticut, 381 U. S. 479, 483 (1965) ("[W]e reaffirm the principle of the Pierce and the Meyer cases").
The picking and choosing among various rights to be accorded "substantive due process" protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called "economic rights" (even though the Due Process Clause explicitly applies to "property") unquestionably involves policymaking rather than neutral legal analy-
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