Opinion of Sclaia, J.
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.[1] As sole support for its conclusion that nonconstitutional law can create constitutionally protected liberty interests, Wilkinson 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 misbehavior," id., at 557 (emphasis added). The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient 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 citizen’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 rights/privilege distinction that this Court rejected almost five decadesago." Post, at 3. Not so. All I insist upon (and all that our cases over the past five decades require) is that the privilege be one to which the claimant has been given an entitlement.
