Oh Snap! Justice Thomas Refuses To Join In Extension of Precedent Based On Substantive Due Process

January 11th, 2012

The Court correctly concludes that its precedents establish a due process right to the pretrial exclusion of an unreliable eyewitness identification only if the identification results from police suggestion. I therefore join its opinion. I write separately because I would not extend Stovall v. Denno, 388 U. S. 293 (1967), and its progeny even if the reasoning of those opinions applied to this case. The Stovall line of cases is premised on a “substantive due process” right to “fundamental fairness.” See, e.g., id., at 299 (concluding that whether a suggestive identification“resulted in such unfairness that it infringed [the defendant’s] right to due process of law” is “open to all persons to allege and prove”); Manson v. Brathwaite, 432 U. S. 98, 113 (1977) (“The standard, after all, is that of fairnessas required by the Due Process Clause of the Fourteenth Amendment”). In my view, those cases are wrongly decided because the Fourteenth Amendment’s Due Process Clause is not a “secret repository of substantive guarantees against ‘unfairness.’” BMW of North America, Inc. v. Gore, 517 U. S. 559, 598–599 (1996) (SCALIA, J., joined by THOMAS, J., dissenting); see also McDonald v. Chicago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring in partand concurring in judgment) (slip op., at 7) (“The notionthat a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity”). Accordingly, I would limit the Court’s suggestive eyewitness identification cases to the precise circumstances that they involved.

His opinion in Perry v. New Hampshire fulfills his promise from McDonald v. Chicago not to recognize any substantive due process.

   I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey 505 U. S. 833963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence supra , at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.

This is big. I mean he is writing for himself, but what other precedents will he vote to roll back?

And Thomas is not replacing SDP precedents with P or I, as he intimated in McDonald. He is just getting rid of them.

Alas, he makes no mention of Privileges or Immunities.

Update: A friend writes:

What a shame. It would be hard to imagine a more obviously true proposition than that the due process clause IS, in fact, a guarantee of fundamental fairness.

Update 2: Tim Sandefur writes how Thomas slights the common-law tradition:

It’s sad to see Justice Thomas take such a position—one that is not reconcilable with logic, precedent, or originalism. In fact, if the due process of law clause means anything at all, it means substantive protections against unfairness. An unfair or arbitrary procedure—a coin toss or consulting a Ouija board—would not be a “process of law,” and would therefore violate the due process of law guarantee, precisely because of its unfairness. Arbitrariness is not law precisely because it is, inter alia, unfair. And that has been how the promise of due process has been understood since the days of Magna Carta. Indeed, the procedures required by the Due Process of Law Clause are required as one part of the Clause’s broader guarantee of substantive fairness. Procedural due process is a subset of substantive due process.