Cite as: 523 U. S. 833 (1998)
Scalia, J., concurring in judgment
least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in due process judicial review." Id., at 720-722.
Today, so to speak, the stone that the builders had rejected has become the foundation stone of our substantive-due-process jurisprudence. The atavistic methodology that Justice Souter announces for the Court is the very same methodology that the Court called atavistic when it was proffered by Justice Souter in Glucksberg. In fact, if anything, today's opinion is even more of a throwback to highly subjective substantive-due-process methodologies than the concurrence in Glucksberg was. Whereas the latter said merely that substantive due process prevents "arbitrary impositions" and "purposeless restraints" (without any objective criterion as to what is arbitrary or purposeless), today's opinion resuscitates the ne plus ultra, the Napoleon Brandy, the Mahatma Gandhi, the Cellophane 1 of subjectivity, th' ol' "shocks-the-conscience" test. According to today's opinion, this is the measure of arbitrariness when what is at issue is executive, rather than legislative, action. Ante, at 846-847.2
1 For those unfamiliar with classical music, I note that the exemplars of excellence in the text are borrowed from Cole Porter's "You're the Top," copyright 1934.
2 The proposition that "shocks-the-conscience" is a test applicable only to executive action is original with today's opinion. That has never been suggested in any of our cases, and in fact "shocks-the-conscience" was recited in at least one opinion involving legislative action. See United States v. Salerno, 481 U. S. 739, 746 (1987) (in considering whether the Bail Reform Act of 1984 violated the Due Process Clause, we said that "[s]o-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience' "). I am of course happy to accept whatever limitations the Court today is willing to impose upon the "shocks-the-conscience" test, though it is a puzzlement why substantive due process protects some liberties against executive officers but not against legislatures.
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