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KERRY v. DIN

Breyer, J., dissenting

I have created a new category of constitutional rights, ante, at 12–15—misses the mark. I break no new ground here. Rather, this Court has already recognized that the Due Process Clause guarantees that the government will not, without fair procedure, deprive individuals of a host of rights, freedoms, and liberties that are no more important, and for which the state has created no greater expectation of continued benefit, than the liberty interest at issue here. See, e.g., Wolff v. McDonnell, 418 U. S. 539, 556–557 (1974) (prisoner’s right to maintain “goodtime” credits shortening term of imprisonment; procedurally protected liberty interest based on nonconstitutional law); Paul v. Davis, 424 U. S. 693, 701 (1976) (right to certain aspects of reputation; procedurally protected liberty interest arising under the Constitution); Goss v. Lopez, 419 U. S. 565, 574–575 (1975) (student’s right not to be suspended from school class; procedurally protected liberty interest arising under the Constitution); Vitek v. Jones, 445 U. S. 480, 491–495 (1980) (prisoner’s right against involuntary commitment; procedurally protected liberty interest arising under the Constitution); Washington v. Harper, 494 U. S. 210, 221–222 (1990) (mentally ill prisoner’s right not to take psychotropic drugs; procedurally protected liberty interest arising under the Constitution); see generally Goldberg, supra, at 262–263 (right to welfare benefits; procedurally protected property interest based on nonconstitutional law). But cf. ante, at 12–14 (plurality opinion) (making what I believe are unsuccessful efforts to distinguish these cases). How could a Constitution that protects individuals against the arbitrary deprivation of so diverse a set of interests not also offer some form of procedural protection to a citizen threatened with governmental deprivation of her freedom to live together with her spouse in America? As compared to reputational harm, for example, how is Ms. Din’s liberty interest any less worthy of due process protections?