862
Scalia, J., concurring in judgment
Glucksberg, of course, rejected "shocks-the-conscience," just as it rejected the less subjective "arbitrary action" test. A 1992 executive-action case, Collins v. Harker Heights, 503 U. S. 115, which had paid lipservice to "shocks-the-conscience," see id., at 128, was cited in Glucksberg for the proposition that "[o]ur Nation's history, legal traditions, and practices . . . provide the crucial 'guideposts for responsible decisionmaking.' " 521 U. S., at 721, quoting Collins, supra, at 125. In fact, even before Glucksberg we had characterized the last "shocks-the-conscience" claim to come before us as "nothing more than [a] bald assertio[n]," and had rejected it on the objective ground that the petitioner "failed to proffer any historical, textual, or controlling precedential support for [his alleged due process right], and we decline to fashion a new due process right out of thin air." Carlisle v. United States, 517 U. S. 416, 429 (1996).
Adhering to our decision in Glucksberg, rather than ask whether the police conduct here at issue shocks my unelected conscience, I would ask whether our Nation has traditionally protected the right respondents assert. The first step of our analysis, of course, must be a "careful description" of the right asserted, Glucksberg, supra, at 721. Here the complaint alleges that the police officer deprived Lewis "of his Fourteenth Amendment right to life, liberty and property without due process of law when he operated his vehicle with recklessness, gross negligence and conscious disregard for his safety." App. 13. I agree with the Court's conclusion that this asserts a substantive right to be free from "de-liberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender." Ante, at 836; see also ante, at 853.
Respondents provide no textual or historical support for this alleged due process right, and, as in Carlisle, I would "decline to fashion a new due process right out of thin air." 517 U. S., at 429. Nor have respondents identified any precedential support. Indeed, precedent is to the contrary:
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