(Slip Opinion)
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` OCTOBER TERM, 2014
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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` KERRY, SECRETARY OF STATE, ET AL. v. DIN
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`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE NINTH CIRCUIT
` No. 13–1402. Argued February 23, 2015—Decided June 15, 2015
`
`Respondent Fauzia Din petitioned to have her husband, Kanishka Be-
`rashk, a resident citizen of Afghanistan and former civil servant in
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`the Taliban regime, classified as an “immediate relative” entitled to
`priority immigration status. Din’s petition was approved, but Be-
`rashk’s visa application was ultimately denied. A consular officer in-
`formed Berashk that he was inadmissible under §1182(a)(3)(B),
`which excludes aliens who have engaged in “[t]errorist activities,” but
`the officer provided no further information. Unable to obtain a more
`detailed explanation for Berashk’s visa denial, Din filed suit in Fed-
`eral District Court, which dismissed her complaint. The Ninth Cir-
`cuit reversed, holding that Din had a protected liberty interest in her
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`marriage that entitled her to review of the denial of Berashk’s visa.
`It further held that the Government deprived her of that liberty in-
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`terest without due process when it denied Berashk’s visa application
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`without providing a more detailed explanation of its reasons.
`Held: The judgment is vacated, and the case is remanded.
`718 F. 3d 856, vacated and remanded.
`JUSTICE SCALIA, joined by THE CHIEF JUSTICE and JUSTICE THOMAS,
`concluded that the Government did not deprive Din of any constitu-
`tional right entitling her to due process of law. Pp. 3–15.
`
`(a) Under a historical understanding of the Due Process Clause,
`Din cannot possibly claim that the denial of Berashk’s visa applica-
`tion deprived her of life, liberty, or property. Pp. 4–5.
`
`(b) Even accepting the textually unsupportable doctrine of implied
`fundamental rights, nothing in that line of cases establishes a free-
`floating and categorical liberty interest sufficient to trigger constitu-
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`tional protection whenever a regulation touches upon any aspect of
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`KERRY v. DIN
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`Syllabus
`the marital relationship. Even if those cases could be so broadly con-
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`strued, the relevant question is not whether the asserted interest “is
`consistent with this Court’s substantive-due-process line of cases,”
`but whether it is supported by “this Nation’s history and practice,”
`
`Washington v. Glucksberg, 521 U. S. 702, 723–724. Here, the Gov-
`ernment’s long practice of regulating immigration, which has includ-
`ed erecting serious impediments to a person’s ability to bring a
`spouse into the United States, precludes Din’s claim. And this Court
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`has consistently recognized its lack of “judicial authority to substitute
`[its] political judgment for that of Congress” with regard to the vari-
`ous distinctions in immigration policy. Fiallo v. Bell, 430 U. S. 787,
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`798. Pp. 5–11.
`JUSTICE KENNEDY, joined by JUSTICE ALITO, concluded that there is
`no need to decide whether Din has a protected liberty interest, be-
`cause, even assuming she does, the notice she received satisfied due
`process. Pp. 1–6.
`
`(a) This conclusion is dictated by the reasoning of Kleindienst v.
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`Mandel, 408 U. S. 753. There the Court declined to balance the as-
`serted First Amendment interest of college professors seeking a
`nonimmigrant visa for a revolutionary Marxist speaker against
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`“Congress’ ‘plenary power to make rules for the admission of aliens,’ ”
`id., at 766, and limited its inquiry to whether the Government had
`provided a “facially legitimate and bona fide” reason for its action,
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`id., at 770. Mandel’s reasoning has particular force here, where na-
`tional security is involved. Pp. 2–3.
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`(b) Assuming that Din’s rights were burdened directly by the visa
`denial, the consular officer’s citation of §1182(a)(3)(B) satisfies Man-
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`del’s “facially legitimate and bona fide” standard. Given Congress’
`plenary power to “suppl[y] the conditions of the privilege of entry into
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`the United States,” United States ex rel. Knauff v. Shaughnessy, 338
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`U. S. 537, 543, the Government’s decision to exclude Berashk because
`he did not satisfy a statutory condition for admissibility is facially le-
`gitimate. Supporting this conclusion is the fact that, by Din’s own
`admission, Berashk worked for the Taliban government. These con-
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`siderations lend to the conclusion that there was a bona fide factual
`basis for exclusion, absent an affirmative showing of bad faith on the
`consular officer’s part, which Din has not plausibly alleged. Pp. 4–6.
`SCALIA, J., announced the judgment of the Court and delivered an
`opinion, in which ROBERTS, C. J., and THOMAS, J., joined. KENNEDY, J.,
`filed an opinion concurring in the judgment, in which ALITO, J., joined.
`BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR,
`and KAGAN, JJ., joined.
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` Cite as: 576 U. S. ____ (2015)
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`Opinion of SCALIA, J.
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 13–1402
`_________________
` JOHN F. KERRY, SECRETARY OF STATE, ET AL.,
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`PETITIONERS v. FAUZIA DIN
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`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
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`
`APPEALS FOR THE NINTH CIRCUIT
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`[June 15, 2015]
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`JUSTICE SCALIA announced the judgment of the Court
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`and delivered an opinion, in which THE CHIEF JUSTICE and
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`
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`JUSTICE THOMAS join.
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`Fauzia Din is a citizen and resident of the United
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`States. Her husband, Kanishka Berashk, is an Afghan
`citizen and former civil servant in the Taliban regime who
`resides in that country. When the Government declined to
`issue an immigrant visa to Berashk, Din sued.
`The state action of which Din complains is the denial of
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`Berashk’s visa application. Naturally, one would expect
`him—not Din—to bring this suit. But because Berashk is
`an unadmitted and nonresident alien, he has no right of
`entry into the United States, and no cause of action to
`press in furtherance of his claim for admission. See
`Kleindienst v. Mandel, 408 U. S. 753, 762 (1972). So, Din
`attempts to bring suit on his behalf, alleging that the
`Government’s denial of her husband’s visa application
`violated her constitutional rights. See App. 36–37, Com­
`plaint ¶56. In particular, she claims that the Government
`denied her due process of law when, without adequate
`explanation of the reason for the visa denial, it deprived
`her of her constitutional right to live in the United States
`with her spouse. There is no such constitutional right.
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`KERRY v. DIN
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`Opinion of SCALIA, J.
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`What JUSTICE BREYER’s dissent strangely describes as a
`“deprivation of her freedom to live together with her
`spouse in America,” post, at 4–5, is, in any world other
`than the artificial world of ever-expanding constitutional
`rights, nothing more than a deprivation of her spouse’s
`freedom to immigrate into America.
`
`For the reasons given in this opinion and in the opinion
`concurring in the judgment, we vacate and remand.
`I
`
`A
`
`
`Under the Immigration and Nationality Act (INA), 66
`Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien
`may not enter and permanently reside in the United
`States without a visa. §1181(a). The INA creates a spe­
`cial visa-application process for aliens sponsored by “im­
`mediate relatives” in the United States.
`§§1151(b),
`1153(a). Under this process, the citizen-relative first files
`a petition on behalf of the alien living abroad, asking to
`have the alien classified as an immediate relative. See
`§§1153(f), 1154(a)(1). If and when a petition is approved,
`the alien may apply for a visa by submitting the required
`documents and appearing at a United States Embassy or
`
`consulate for an interview with a consular officer. See
`§§1201(a)(1), 1202. Before issuing a visa, the consular
`officer must ensure the alien is not inadmissible under
`any provision of the INA. §1361.
`
`One ground for inadmissibility, §1182(a)(3)(B), covers
`“[t]errorist activities.” In addition to the violent and de­
`structive acts the term immediately brings to mind, the
`INA defines “terrorist activity” to include providing mate­
`rial support to a terrorist organization and serving as a
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`terrorist organization’s representative. §1182(a)(3)(B)(i),
`(iii)–(vi).
`
`
`
`B
`Fauzia Din came to the United States as a refugee in
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`2000, and became a naturalized citizen in 2007. She filed
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`a petition to have Kanishka Berashk, whom she married
`in 2006, classified as her immediate relative. The petition
`was granted, and Berashk filed a visa application. The
`U. S. Embassy
`in Islamabad, Pakistan,
`interviewed
`Berashk and denied his application. A consular officer
`informed Berashk that he was
`inadmissible under
`§1182(a)(3)(B) but provided no further explanation.
`
`
`Din then brought suit in Federal District Court seeking
`a writ of mandamus directing the United States to prop-
`erly adjudicate Berashk’s visa application; a declaratory
`
`judgment that 8 U. S. C. §1182(b)(2)–(3), which exempts
`the Government from providing notice to an alien found
`inadmissible under the terrorism bar, is unconstitutional
`as applied; and a declaratory judgment that the denial
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`violated the Administrative Procedure Act. App. 36–39,
`Complaint ¶¶55–68. The District Court granted the Gov­
`ernment’s motion to dismiss, but the Ninth Circuit re­
`versed. The Ninth Circuit concluded that Din “has a
`protected liberty interest in marriage that entitled [her] to
`review of the denial of [her] spouse’s visa,” 718 F. 3d 856,
`860 (2013), and that the Government’s citation of
`§1182(a)(3)(B) did not provide Din with the “limited judi­
`cial review” to which she was entitled under the Due
`
`Process Clause, id., at 868. This Court granted certiorari.
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`573 U. S. ___ (2014).
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`II
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`The Fifth Amendment provides that “[n]o person shall
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`be . . . deprived of life, liberty, or property, without due
`process of law.” Although the amount and quality of
`process that our precedents have recognized as “due”
`under the Clause has changed considerably since the
`founding, see Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S.
`1, 28–36 (1991) (SCALIA, J., concurring in judgment), it
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`remains the case that no process is due if one is not de­
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`prived of “life, liberty, or property,” Swarthout v. Cooke,
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`562 U. S. 216, 219 (2011) (per curiam). The first question
`that we must ask, then, is whether the denial of Berashk’s
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`visa application deprived Din of any of these interests.
`Only if we answer in the affirmative must we proceed to
`consider whether the Government’s explanation afforded
`sufficient process.
`
`A
`
`The Due Process Clause has its origin in Magna Carta.
`As originally drafted, the Great Charter provided that
`“[n]o freeman shall be taken, or imprisoned, or be dis­
`seised of his freehold, or liberties, or free customs, or be
`outlawed, or exiled, or any otherwise destroyed; nor will
`we not pass upon him, nor condemn him, but by lawful
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`judgment of his peers, or by the law of the land.” Magna
`Carta, ch. 29, in 1 E. Coke, The Second Part of the Insti­
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`tutes of the Laws of England 45 (1797) (emphasis added).
`The Court has recognized that at the time of the Fifth
`
`Amendment’s ratification, the words “due process of law”
`were understood “to convey the same meaning as the
`words ‘by the law of the land’” in Magna Carta. Murray’s
`Lessee v. Hoboken Land & Improvement Co., 18 How. 272,
`276 (1856). Although the terminology associated with the
`guarantee of due process changed dramatically between
`1215 and 1791, the general scope of the underlying rights
`protected stayed roughly constant.
`
`Edward Coke, whose Institutes “were read in the Amer­
`
`ican Colonies by virtually every student of law,” Klopfer v.
`North Carolina, 386 U. S. 213, 225 (1967), thoroughly
`described the scope of the interests that could be deprived
`only pursuant to “the law of the land.” Magna Carta, he
`wrote, ensured that, without due process, “no man [may]
`be taken or imprisoned”; “disseised of his lands, or tene­
`ments, or dispossessed of his goods, or chattels”; “put from
`his livelihood without answer”; “barred to have the benefit
`of the law”; denied “the franchises, and priviledges, which
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`the subjects have of the gift of the king”; “exiled”; or “fore­
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`judged of life, or limbe, disherited, or put to torture, or
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`death.” 1 Coke, supra, at 46–48. Blackstone’s description
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`of the rights protected by Magna Carta is similar, al­
`though he discusses them in terms much closer to the “life,
`liberty, or property” terminology used in the Fifth
`Amendment. He described first an interest in “personal
`security,” “consist[ing] in a person’s legal and uninterrupted
`
`enjoyment of his life, his limbs, his body, his health,
`and his reputation.” 1 W. Blackstone, Commentaries on
`the Laws of England 125 (1769). Second, the “personal
`liberty of individuals” “consist[ed] in the power of loco­
`motion, of changing situation, or removing one’s person to
`whatsoever place one’s own inclination may direct; with­
`out imprisonment or restraint.” Id., at 130. And finally, a
`person’s right to property included “the free use, enjoy­
`ment, and disposal of all his acquisitions.” Id., at 134.
`
`Din, of course, could not conceivably claim that the
`denial of Berashk’s visa application deprived her—or for
`that matter even Berashk—of life or property; and under
`the above described historical understanding, a claim that
`it deprived her of liberty is equally absurd. The Govern­
`ment has not “taken or imprisoned” Din, nor has it “con­
`fine[d]” her, either by “keeping [her] against h[er] will in a
`private house, putting h[er] in the stocks, arresting or
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`forcibly detaining h[er] in the street.” Id., at 132. Indeed,
`not even Berashk has suffered a deprivation of liberty so
`understood.
`
`
`
`
`
`B
`
`Despite this historical evidence, this Court has seen fit
`on several occasions to expand the meaning of “liberty”
`under the Due Process Clause to include certain implied
`“fundamental rights.”
`(The reasoning presumably goes
`
`
`like this: If you have a right to do something, you are free
`to do it, and deprivation of freedom is a deprivation of
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`“liberty”—never mind the original meaning of that word in
`the Due Process Clause.) These implied rights have been
`given more protection than “life, liberty, or property”
`properly understood. While one may be dispossessed of
`property, thrown in jail, or even executed so long as proper
`procedures are followed, the enjoyment of implied consti­
`tutional rights cannot be limited at all, except by provi­
`sions that are “narrowly tailored to serve a compelling
`state interest.” Reno v. Flores, 507 U. S. 292, 301–302
`(1993). Din does not explicitly argue that the Government
`has violated this absolute prohibition of the substantive
`component of the Due Process Clause, likely because it is
`obvious that a law barring aliens engaged in terrorist
`activities from entering this country is narrowly tailored
`to serve a compelling state interest. She nevertheless
`insists that, because enforcement of the law affects her
`enjoyment of an implied fundamental liberty, the Govern­
`ment must first provide her a full battery of procedural­
`due-process protections.
`
`I think it worth explaining why, even if one accepts the
`textually unsupportable doctrine of implied fundamental
`rights, Din’s arguments would fail. Because “extending
`constitutional protection to an asserted right or liberty
`interest . . . place[s] the matter outside the arena of public
`
`debate and legislative action,” Washington v. Glucksberg,
`521 U. S. 702, 720 (1997), and because the “guideposts for
`
`responsible decisionmaking in this unchartered area are
`scarce and open-ended,” Collins v. Harker Heights, 503
`U. S. 115, 125 (1992), “[t]he doctrine of judicial self-
`restraint requires us to exercise the utmost care whenever
`
`we are asked to break new ground in this field,” ibid.
`Accordingly, before conferring constitutional status upon a
`previously unrecognized “liberty,” we have required “a
`careful description of the asserted fundamental liberty
`interest,” as well as a demonstration that the interest is
`“objectively, deeply rooted in this Nation’s history and
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`Opinion of SCALIA, J.
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`tradition, and implicit in the concept of ordered liberty,
`such that neither liberty nor justice would exist if [it was]
`
`sacrificed.” Glucksberg, supra, at 720–721 (citations and
`internal quotation marks omitted).
`
`Din describes the denial of Berashk’s visa application as
`implicating, alternately, a “liberty interest in her mar­
`riage,” Brief for Respondent 28, a “right of association with
`one’s spouse,” id., at 18, “a liberty interest in being reunited
`with certain blood relatives,” id., at 22, and “the liberty
`interest of a U. S. citizen under the Due Process Clause to
`be free from arbitrary restrictions on his right to live with
`
`his spouse,” ibid. To be sure, this Court has at times
`indulged a propensity for grandiloquence when reviewing
`the sweep of implied rights, describing them so broadly
`that they would include not only the interests Din asserts
`but many others as well. For example: “Without doubt,
`[the liberty guaranteed by the Due Process Clause] de­
`notes not merely freedom from bodily restraint but also
`the right of the individual to contract, to engage in any
`of the common occupations of life, to acquire useful
`knowledge, to marry, establish a home and bring up chil­
`dren, [and] to worship God according to the dictates of his
`
`
`
`own conscience” Meyer v. Nebraska, 262 U. S. 390, 399
`(1923). But this Court is not bound by dicta, especially
`dicta that have been repudiated by the holdings of our
`subsequent cases. And the actual holdings of the cases
`Din relies upon hardly establish the capacious right she
`now asserts.
`
`Unlike the States in Loving v. Virginia, 388 U. S. 1
`(1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and
`
`Turner v. Safley, 482 U. S. 78 (1987), the Federal Govern­
`ment here has not attempted to forbid a marriage. Al-
`though Din and the dissent borrow language from those
`cases invoking a fundamental right to marriage, they both
`implicitly concede that no such right has been infringed in
`this case. Din relies on the “associational interests in
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`marriage that necessarily are protected by the right to
`marry,” and that are “presuppose[d]” by later cases estab­
`lishing a right to marital privacy. Brief for Respondent
`16, 18. The dissent supplements the fundamental right to
`marriage with a fundamental right to live in the United
`States in order to find an affected liberty interest. Post, at
`2–3 (BREYER, J., dissenting).
`
`
`
`Attempting to abstract from these cases some liberty
`
`interest that might be implicated by Berashk’s visa denial,
`
`
` Din draws on even more inapposite cases. Meyer, for
`example, invalidated a state statute proscribing the teach­
`ing of foreign language to children who had not yet passed
`the eighth grade, reasoning that it violated the teacher’s
`“right thus to teach and the right of parents to engage him
`so to instruct their children.” 262 U. S., at 400. Pierce v.
`Society of Sisters, 268 U. S. 510, 534–535 (1925), extended
`Meyer, finding that a law requiring children to attend
`public schools “interferes with the liberty of parents and
`guardians to direct the upbringing and education of chil­
`dren under their control.” Moore v. East Cleveland, 431
`U. S. 494, 505–506 (1977), extended this interest in rais­
`ing children to caretakers in a child’s extended family,
`striking down an ordinance that limited occupancy of a
`single-family house to members of a nuclear family on the
`ground that “[d]ecisions concerning child rearing . . . long
`have been shared with grandparents or other relatives.”
`
`And Griswold v. Connecticut, 381 U. S. 479, 485 (1965),
`concluded that a law criminalizing the use of contracep­
`tives by married couples violated “penumbral rights of
`‘privacy and repose’” protecting “the sacred precincts of
`the marital bedroom”—rights which do not plausibly
`extend into the offices of our consulates abroad.
`
`Nothing in the cases Din cites establishes a free-floating
`and categorical liberty interest in marriage (or any other
`formulation Din offers) sufficient to trigger constitutional
`protection whenever a regulation in any way touches upon
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`Opinion of SCALIA, J.
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`an aspect of the marital relationship. Even if our cases
`could be construed so broadly, the relevant question is not
`
`whether the asserted interest “is consistent with this
`Court’s substantive-due-process line of cases,” but whether
`
`it is supported by “this Nation’s history and practice.”
`
`Glucksberg, 521 U. S., at 723–724 (emphasis deleted).
`
`Even if we might “imply” a liberty interest in marriage
`generally speaking, that must give way when there is a
`tradition denying the specific application of that general
`
`
`interest. Thus, Glucksberg rejected a claimed liberty
`interest in “self-sovereignty” and “personal autonomy”
`that extended to assisted suicide when there was a
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`longstanding tradition of outlawing the practice of suicide.
`Id., at 724, 727–728 (internal quotation marks omitted).
`
`
`Here, a long practice of regulating spousal immigration
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`precludes Din’s claim that the denial of Berashk’s visa
`application has deprived her of a fundamental liberty
`interest. Although immigration was effectively unregu­
`lated prior to 1875, as soon as Congress began legislating in
`this area it enacted a complicated web of regulations that
`erected serious impediments to a person’s ability to bring
`a spouse into the United States. See Abrams, What
`
`Makes the Family Special? 80 U. Chi. L. Rev. 7, 10–16
`(2013).
`
`Most strikingly, perhaps, the Expatriation Act of 1907
`provided that “any American woman who marries a for­
`
`eigner shall take the nationality of her husband.” Ch.
`2534, 34 Stat. 1228. Thus, a woman in Din’s position not
`only lacked a liberty interest that might be affected by the
`Government’s disposition of her husband’s visa applica­
`
`tion, she lost her own rights as a citizen upon marriage.
`When Congress began to impose quotas on immigration by
`country of origin less than 15 years later, with the Immi­
`
`gration Act of 1921, it omitted fiances and husbands from
`the family relations eligible for preferred status in the
`allocation of quota spots. §2(d), 42 Stat. 6. Such relations
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`were similarly excluded from the relations eligible for
`nonquota status, when that status was expanded three
`
`years later. Immigration Act of 1924, §4(a), 43 Stat. 155.
`
`To be sure, these early regulations were premised on the
`derivative citizenship of women, a legacy of the law of
`coverture that was already in decline at the time. C.
`Bredbenner, A Nationality of Her Own 5 (1998). Modern
`equal-protection doctrine casts substantial doubt on the
`permissibility of such asymmetric treatment of women
`citizens in the immigration context, and modern moral
`judgment rejects the premises of such a legal order. Never-
`theless, this all-too-recent practice repudiates any con-
`
`tention that Din’s asserted liberty interest is “deeply
`rooted in this Nation’s history and tradition, and implicit
`in the concept of ordered liberty.” Glucksberg, supra, at
`720 (citations and internal quotations marks omitted).
`
`Indeed, the law showed little more solicitude for the
`marital relationship when it was a male resident or citizen
`seeking admission for his fiancee or wife. The Immigra­
`tion Act of 1921 granted nonquota status only to unmar­
`ried, minor children of citizens, §2(a), while granting
`fiancees and wives preferred status within the allocation
`of quota spots, §2(d). In other words, a citizen could move
`his spouse forward in the line, but once all the quota spots
`were filled for the year, the spouse was barred without
`exception. This was not just a theoretical possibility: As
`one commentator has observed, “[f]or many immigrants,
`the family categories did little to help, because the quotas
`were so small that the number of family members seeking
`slots far outstripped the number available.” Abrams,
`supra, at 13.
`
`Although Congress has tended to show “a continuing
`and kindly concern . . . for the unity and the happiness of
`the immigrant family,” E. Hutchinson, Legislative History
`of American Immigration Policy 1798–1965, p. 518 (1981),
`this has been a matter of legislative grace rather than
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`fundamental right. Even where Congress has provided
`special privileges to promote family immigration, it has
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`also “written in careful checks and qualifications.” Ibid.
`This Court has consistently recognized that these various
`
`distinctions are “policy questions entrusted exclusively to
`the political branches of our Government, and we have no
`judicial authority to substitute our political judgment for
`that of the Congress.” Fiallo v. Bell, 430 U. S. 787, 798
`(1977). Only by diluting the meaning of a fundamental
`liberty interest and jettisoning our established jurispru­
`dence could we conclude that the denial of Berashk’s visa
`application implicates any of Din’s fundamental liberty
`interests.
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`C
`JUSTICE BREYER suggests that procedural due process
`rights attach to liberty interests that either are (1) created
`by nonconstitutional law, such as a statute, or (2) “suffi­
`ciently important” so as to “flow ‘implicit[ly]’ from the
`design, object, and nature of the Due Process Clause.”
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`Post, at 2.
`
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`The first point is unobjectionable, at least given this
`Court’s case law. See, e.g., Goldberg v. Kelly, 397 U. S.
`254, 262, and n. 8 (1970); Collins 503 U. S., at 129. But it
`is unhelpful to Din, who does not argue that a statute
`confers on her a liberty interest protected by the Due
`Process Clause. JUSTICE BREYER attempts to make this
`argument for Din, latching onto language in Wilkinson v.
`Austin, 545 U. S. 209, 221 (2005), saying that a liberty
`interest “may arise from an expectation or interest created
`by state laws or policies.” Such an “expectation” has been
`created here, he asserts, because “the law . . . surrounds
`marriage with a host of legal protections to the point that
`it creates a strong expectation that government will not
`deprive married individuals of their freedom to live to­
`gether without strong reasons and (in individual cases)
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`without fair procedure,” post, at 3. But what Wilkinson
`meant by an “expectation or interest” was not that sort of
`judicially unenforceable substantial hope, but a present
`and legally recognized substantive entitlement.* As sole
`support for its conclusion that nonconstitutional law can
`create constitutionally protected liberty interests, Wil-
`kinson cited Wolff v. McDonnell, 418 U. S. 539, 556–558
`(1974), which held that a prisoner could not be deprived of
`
`statutory good-time credit without procedural due process.
`That was not because a prisoner might have “‘a strong
`
`
`expectation’” that the government would not deprive him
`
`of good-time credit “‘without strong reasons’” or “‘fair
`procedure,’” but because “the State itself has not only
`
`provided a statutory right to good time [credit] but also
`specifies that it is to be forfeited only for serious misbehav­
`ior,” id., at 557 (emphasis added). The legal benefits
`afforded to marriages and the preferential treatment
`accorded to visa applicants with citizen relatives are insuf­
`ficient to confer on Din a right that can be deprived only
`pursuant to procedural due process.
`JUSTICE BREYER’s second point—that procedural due
`process rights attach even to some nonfundamental liberty
`interests that have not been created by statute—is much
`more troubling. He relies on the implied-fundamental­
`rights cases discussed above to divine a “right of spouses
`to live together and to raise a family,” along with “a citi­
`zen’s right to live within this country.” Post, at 2–3. But
`
`perhaps recognizing that our established methodology for
`identifying fundamental rights cuts against his conclusion,
`see Part II–B, supra, he argues that the term “liberty” in
`the Due Process Clause includes implied rights that,
`——————
`* JUSTICE BREYER characterizes this as a reintroduction of “the
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`rights/privilege distinction that this Court rejected almost five decades
`
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`ago.” Post, at 3. Not so. All I insist upon (and all that our cases over
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`the past five decades require) is that the privilege be one to which the
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`claimant has been given an entitlement.
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`although not so fundamental as to deserve substantive­
`due-process protection, are important enough to deserve
`procedural-due-process protection. Post, at 2. In other
`words, there are two categories of implied rights protected
`by the Due Process Clause: really fundamental rights,
`which cannot be taken away at all absent a compelling
`state interest; and not-so-fundamental rights, which
`can be taken away so long as procedural due process is
`observed.
`The dissent fails to cite a single case supporting its
`
`novel theory of implied nonfundamental rights. It is
`certainly true that Vitek v. Jones, 445 U. S. 480 (1980),
`and Washington v. Harper, 494 U. S. 210 (1990), do not
`entail implied fundamental rights, but this is because they
`do not entail implied rights at all. Vitek concerned the
`
`involuntary commitment of a prisoner, deprivation of the
`expressly protected right of liberty under the original
`understanding of the term, see Part II–A, supra. “‘Among
`the historic liberties’ protected by the Due Process Clause
`is the ‘right to be free from, and to obtain judicial relief for,
`unjustified intrusions on personal security.’” Vitek, supra,
`at 492. The same is true of Harper, which concerned
`
`forced administration of psychotropic drugs to an inmate.
`
`494 U. S., at 214. Arguably, Paul v. Davis, 424 U. S. 693
`(1976), also addressed an interest expressly contemplated
`within the meaning of “liberty.” See 1 W. Blackstone,
`Commentaries on the Laws of England 125 (“The right of
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`personal security consists in a person’s . . . reputation”).
`
`
`But that case is of no help to the dissent anyway, since it
`found no liberty interest entitled to the Due Process
`
`Clause’s protection. Paul, supra, at 713–714. Finally, the
`dissent points to Goss v. Lopez, 419 U. S. 565, 574 (1975),
`a case that “recognize[d] . . . as a property interest” a
`student’s right to a public education conferred by Ohio’s
`express statutory creation of a public school system; and
`further concluded that the student’s 10-day suspension
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`implicated the constitutionally grounded liberty interest
`in “‘a person’s good name, reputation, honor, or integrity.’”
`
`Ultimately, the dissent identifies no case holding that
`there is an implied nonfundamental right protected by
`procedural due process, and only one case even suggesting
`that there is. Th