Michael H. v. Gerald D./Concurrence O'Connor

by Sandra Day O'Connor

Justice O'CONNOR, with whom Justice KENNEDY joins, concurring in part.

I concur in all but footnote 6 of Justice SCALIA's opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be "the most specific level" available. Ante, at 127-128, n 6. See Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); Turner v. Safley, 482 U.S. 78, 94, 107 S.Ct. 2254, 2265, 96 L.Ed.2d 64 (1987); cf. United States v. Stanley, 483 U.S. 669, 709, 107 S.Ct. 3054, 3065, 97 L.Ed.2d 550 (1987) (O'CONNOR, J., concurring in part and dissenting in part). I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis. Poe v. Ullman, 367 U.S. 497, 542, 544, 81 S.Ct. 1752, 1776, 1777, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting).

Notes