Scalia: Don’t “Tortify the Fourteenth Amendment”

June 22nd, 2015

Justice Scalia’s dissent in Kingsley v. Hendrickson closes with this gem:

I conclude by emphasizing that our Constitution is not the only source of American law. There is an immense body of state statutory and common law under which individuals abused by state officials can seek relief. Kingsley himself, in addition to suing respondents for excessive force under 42 U. S. C. §1983, brought a state- law claim for assault and battery. 744 F. 3d 443, 446, n. 6 (CA7 2014). The Due Process Clause is not “a font of tort law to be superimposed upon” that state system. Daniels v. Williams, 474 U. S. 327, 332 (1986) (quoting Paul v. Davis, 424 U. S. 693, 701 (1976)). Today’s majority over- looks this in its tender-hearted desire to tortify the Fourteenth Amendment.

This reminds me of his turn-of-phrase “dictumizer” concerning Footnote Four in Schuette.