860
Scalia, J., concurring in judgment
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
Today's opinion gives the lie to those cynics who claim that changes in this Court's jurisprudence are attributable to changes in the Court's membership. It proves that the changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim, "That was then, this is now."
Just last Term, in Washington v. Glucksberg, 521 U. S. 702, 720-722 (1997), the Court specifically rejected the method of substantive-due-process analysis employed by Justice Souter in his concurrence in that case, which is the very same method employed by Justice Souter in his opinion for the Court today. To quote the opinion in Glucksberg:
"Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,' . . . and 'implicit in the concept of ordered liberty' . . . . Second, we have required in substantive-due-process cases a 'careful description' of the asserted fundamental liberty interest. . . . Our Nation's history, legal traditions, and practices thus provide the crucial 'guideposts for responsible decisionmaking,' . . . that direct and restrain our exposition of the Due Process Clause. . . .
"Justice Souter . . . would largely abandon this restrained methodology, and instead ask 'whether [Washington's] statute sets up one of those "arbitrary impositions" or "purposeless restraints" at odds with the Due Process Clause . . . ' [citations and footnote omitted]. In our view, however, the development of this Court's substantive-due-process jurisprudence . . . has been a process whereby the outlines of the 'liberty' specially protected by the Fourteenth Amendment . . . have at
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