What Is A “Liberty Interest” And Why Does The Due Process Clause Protect It?
I continue to make my way through the final decisions of the term. Next up is Gutierrez v. Saenz. At first blush, this is the sort of case you might skip over. Can a convicted murderer sue the District Attorney under Section 1983 to force him to test potentially exonerating DNA evidence? This dispute turns, in part, on whether the District Attorney’s refusal to test the DNA deprives the defendant of life, liberty, or property, without due process of law. To be clear, the Defendant was afforded more the process he was due at the criminal trial, through the appellate process, and through collateral review. The constitutional question presented here is whether the refusal to test the DNA violates the Due Process Clause.
The Fifth Circuit panel did not reach the merits. Rather, the panel found that the Defendant lacked standing to bring the Section 1983 claim. The Supreme Court, by a vote of 6-3, reversed the lower court. Justice Sotomayor’s majority opinion found that the Defendant had standing to bring the claim.
Justice Barrett concurred in judgment. She thinks the lower court misapplied Reed v. Goertz, but wrote that the Court’s analysis “muddies the waters of standing doctrine.” I wish the Process Formalist would have written more than a paragraph to explain why. But this is all we got.
Justice Alito’s dissented, joined by Justices Thomas and Gorsuch. Justice Thomas wrote a solo dissent that was enlightening and thought provoking: what do “life, liberty, or property” mean in the Due Process Clause? In particular, he addresses a question I’ve long wondered: what exactly is a “liberty interest?” This opinion raises similar issues as Thomas’s Medina concurrence, which challenges the breadth of Section 1983.
First, Thomas returns to the themes of his Obergefell dissent with the meaning of “liberty.” At common law, “liberty” referred to a freedom from physical restraint. Thomas cites Magna Carta, Coke, Blackstone, and other foundational sources.
This conception of liberty, however, was expanded during the Lochner era:
The original meaning of “liberty” in the Fourteenth Amendment was likely far narrower than our precedents currently hold. The term originally appears to have referred only to freedom from physical restraint. But, in the Lochner era, the Court began to hold that “liberty” includes fundamental rights generally. See Lochner v. New York, 198 U. S. 45 (1905). This Court has since adhered to that broader meaning.
Does Justice Thomas think the Lochner-era precedents concerning “fundamental” rights are consistent with the original meaning of the Fourteenth Ame
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