782
Scalia, J., concurring in part in judgment
doctrine of substantive due process. (Justice Thomas uses similar shorthand in the concluding sentence of his analysis: "Our views on the proper scope of the Fifth Amendment's Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment's Due Process Clause, rather than the Fifth Amendment's Self-Incrimination Clause, would govern the inquiry in those cases." Ante, at 773.) What other possible meaning could the passage possess? Surely the Ninth Circuit was not expending a paragraph to make the utterly useless observation that, in addition to violating the Fifth Amendment (because that is incorporated in the Fourteenth) Chavez violated the Fourteenth Amendment (because that incorporates the Fifth). That substantive due process was the point is confirmed by the fact that the sole authority cited to support violation of "the Fourteenth Amendment" is Cooper v. Dupnik, 963 F. 2d 1220, 1244-1245 (1992), a Ninth Circuit case that explicitly recognized a substantive-due-process right to be free from coercive police questioning. See id., at 1244-1250.
Since the Ninth Circuit's Fourteenth Amendment holding rested upon substantive due process, we are without authority to disturb that court's judgment solely because of our disagreement with its Fifth Amendment (Self-Incrimination Clause) analysis; the substantive-due-process holding provides an independent ground supporting the decision that Chavez was not entitled to qualified immunity. While Justice Souter declines to address that independent ground— even though the parties extensively briefed the issue, Brief for Petitioner 21-36; Brief for Respondent 29-40; Reply Brief for Petitioner 8-12; Brief for United States as Amicus Curiae 17-23, and even though Justice Stevens discusses it in dissent, post, at 787-788 (opinion concurring in part and dissenting in part)—I believe that addressing it, and resolving
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