856
Kennedy, J., concurring
tive due process under the Fourteenth Amendment is 'shocks the conscience'. . . or is 'deliberate indifference' or 'reckless disregard.' " Pet. for Cert. i.
The county's petition assumed that the constitutional question was one of substantive due process, and the parties briefed the question on that assumption. The assumption was surely not without foundation in our case law, as the Court makes clear. Ante, at 846-847. The Court is correct in concluding that "shocks the conscience" is the right choice among the alternatives posed in the question presented, and correct in concluding that this demanding standard has not been met here.
Justice Kennedy, with whom Justice O'Connor joins, concurring.
I join the opinion of the Court, and write this explanation of the objective character of our substantive due process analysis.
The Court is correct, of course, in repeating that the prohibition against deprivations of life, liberty, or property contained in the Due Process Clause of the Fourteenth Amendment extends beyond the command of fair procedures. It can no longer be controverted that due process has a substantive component as well. See, e. g., Washington v. Glucksberg, 521 U. S. 702 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992); Collins v. Harker Heights, 503 U. S. 115, 125-128 (1992); Michael H. v. Gerald D., 491 U. S. 110 (1989). As a consequence, certain actions are prohibited no matter what procedures attend them. In the case before us, there can be no question that an interest protected by the text of the Constitution is implicated: The actions of the State were part of a causal chain resulting in the undoubted loss of life. We have no definitional problem, then, in determining whether there is an interest sufficient to invoke due process. Cf. Ohio Adult Parole Authority v. Woodard, ante, p. 272.
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