500
Breyer, J., dissenting
I recognize that, as a consequence, courts must separate the unimportant from the potentially significant, without the help of the more objective "discretion-cabining" test. Yet, making that judicial judgment seems no more difficult than many other judicial tasks. See Goss v. Lopez, 419 U. S. 565, 576 (1975) ("de minimis" line defining property interests under the Due Process Clause). It seems to me possible to separate less significant matters such as television privileges, "sack" versus "tray" lunches, playing the state lottery, attending an ex-stepfather's funeral, or the limits of travel when on prison furlough, e. g., Lyon v. Farrier, 727 F. 2d 766, 768-769 (CA8 1984); Burgin v. Nix, 899 F. 2d 733, 734-735 (CA8 1990) (per curiam); Hatch v. Sharp, 919 F. 2d 1266, 1270 (CA7 1990); Merritt v. Broglin, 891 F. 2d 169, 173-174 (CA7 1989); Segal v. Biller, No. 94-35448, 1994 U. S. App. LEXIS 30628, *4-*5 (CA9, Oct. 31, 1994) (unpublished), from more significant matters, such as the solitary confinement at issue here. Indeed, prison regulations themselves may help in this respect, such as the regulations here which separate (from more serious matters) "low moderate" and "minor" misconduct. Compare, on the one hand, the maximum punishment for "moderate" misconduct of two weeks of disciplinary segregation, Haw. Admin. Rule § 17-201-8 (1983), with the less severe maximum punishments, on the other hand, for "low moderate" and "minor" misconduct, §§ 17-201-9, 10 (several hours of disciplinary segregation and "[l]oss of privileges" such as "community recreation; commissary; snacks; cigarettes, smoking; personal visits—no longer than fifteen days; personal correspondence; personal phone calls for not longer than fifteen days"; impounding personal property; extra duty; and reprimand).
The upshot is the following: the problems that the majority identifies suggest that this Court should make explicit the lower definitional limit, in the prison context, of "liberty" under the Due Process Clause—a limit that is already implicit in this Court's precedent. See Morrissey v. Brewer,
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