Cite as: 523 U. S. 833 (1998)
Opinion of the Court
years we have repeatedly adhered to Rochin's benchmark. See, e. g., Breithaupt v. Abram, 352 U. S. 432, 435 (1957) (reiterating that conduct that " 'shocked the conscience' and was so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency" would violate substantive due process); Whitley v. Albers, 475 U. S. 312, 327 (1986) (same); United States v. Salerno, 481 U. S. 739, 746 (1987) ("So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' . . . or interferes with rights 'implicit in the concept of ordered liberty' ") (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." While the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, "poin[t] the way." Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2), cert. denied, 414 U. S. 1033 (1973).8
8 As Justice Scalia has explained before, he fails to see "the usefulness of 'conscience shocking' as a legal test," Herrera v. Collins, 506 U. S. 390, 428 (1993), and his independent analysis of this case is therefore understandable. He is, however, simply mistaken in seeing our insistence on the shocks-the-conscience standard as an atavistic return to a scheme of due process analysis rejected by the Court in Washington v. Glucksberg, 521 U. S. 702 (1997).
Glucksberg presented a disagreement about the significance of historical examples of protected liberty in determining whether a given statute could be judged to contravene the Fourteenth Amendment. The differences of opinion turned on the issues of how much history indicating recognition of the asserted right, viewed at what level of specificity, is necessary to support the finding of a substantive due process right entitled to prevail over state legislation.
As we explain in the text, a case challenging executive action on substantive due process grounds, like this one, presents an issue antecedent to any question about the need for historical examples of enforcing a lib-
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