Cite as: 538 U. S. 760 (2003)
Opinion of Stevens, J.
it against respondent, is essential to the Court's disposition, which reverses the Ninth Circuit's judgment in its entirety.
I therefore see no basis for a remand to determine "[w]hether Martinez may pursue a claim of liability for a substantive due process violation." Ante, at 779 (majority opinion). That question has already been decided by the Ninth Circuit, and we today reverse its decision. My disagreement with the Court, however, is of little consequence, because Martinez will not be able to prevail on remand by raising anew his substantive-due-process claim. Not only is the claim meritless, as Justice Thomas demonstrates, ante, at 774-776, but Martinez already had his chance to press a substantive-due-process theory in the Court of Appeals and chose not to, even though Ninth Circuit precedent clearly established substantive due process (including—contrary to the Government's assertion at oral argument, see Tr. of Oral Arg. 26—a "shocks the conscience" criterion) as an available theory of liability under the Fourteenth Amendment. See Cooper, supra, at 1248 ("There is a second Fourteenth Amendment substantive due process yardstick available to Cooper as a theory of § 1983 liability. The test is whether the Task Force's conduct 'shocks the conscience' "). Nowhere did respondent's appellate brief mention the words "substantive due process"; the only rights it asserted were the right against self-incrimination and the right to warnings under Miranda v. Arizona, 384 U. S. 436 (1966). Appellees' Responding Brief in No. 00-56520 (CA9), pp. 28-32, 36-43. If, as Justice Souter apparently believes, the opinion below did not address respondent's "substantive due process" claim, that claim has been forfeited.
Justice Stevens, concurring in part and dissenting in part.
As a matter of fact, the interrogation of respondent was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods. As
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