Dissent
SUPREME COURT OF THE UNITED STATES
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No. 23–7809
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RUBEN GUTIERREZ, PETITIONER v. LUIS SAENZ, et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 26, 2025]
Justice Thomas, dissenting.
I join Justice Alito’s principal dissent because I agree that Ruben Gutierrez lacks standing to bring a federal suit alleging that Texas’s post-conviction DNA testing procedures violate due process.1 I write separately to emphasize that this Court has no business intervening in this case in the first place. The Constitution does not require any State to establish procedures for state prisoners to challenge the validity of their convictions after trial. Yet, Gutierrez’s suit rests on the premise that the Fourteenth Amendment’s Due Process Clause gives him a “liberty interest” in Texas’s voluntarily created procedures. That premise cannot be squared with any principled reading of the Due Process Clause. I therefore disagree with our decision to grant certiorari and revive Gutierrez’s challenge. Our intervention serves no purpose other than to exacerbate the already egregious delays endemic to capital litigation.
I
A
The Texas Constitution provides capital defendants the right to a trial by jury. Art. 1, §10. It further provides that, after a defendant is convicted and sentenced, he may file a direct appeal to the Texas Court of Criminal Appeals (TCCA), the State’s highest court for criminal cases. Art. 5, §5(b). Texas law also allows prisoners sentenced to death to challenge their conviction and sentence collaterally by filing a petition for habeas corpus in their court of conviction. Tex. Code Crim. Proc. Ann., Art. 11.071 (Vernon Cum. Supp. 2024). Even if the prisoner’s trial was error free, he may obtain habeas relief under state law if he produces newly discovered evidence establishing that he is actually innocent of the offense. Ex parte Mayhugh, 512 S. W. 3d 285, 295 (Tex. Crim. App. 2016).
Chapter 64 of the Texas Code of Criminal Procedure further allows convicted defendants to seek testing of DNA evidence that was in the possession of the State during trial. Arts. 64.01(a)(2)(a–1), (b) (Vernon 2018). Upon the defendant’s motion, the convicting court may order testing if certain conditions are met, including that the evidence still exists in a testable condition, that the defendant can show that he likely would not have been convicted had he obtained exculpatory results from DNA testing, and that the defendant can show that he is not bringing the motion unreasonably to delay his execution. Art. 64.03(a). Defendants who obtain DNA testing may use the results to support their state habeas petitions. Thacker v. State, 177 S. W. 3d 926, 927 (Tex. Crim. App. 2005) (per curiam).
B
A Texas jury convicted Gutierrez and sentenced him to death for the 1998 robbery and murder of Escolastica Harrison. Having thrice failed to obtain DNA testing under Chapter 64 in state court, he now claims that several of Chapter 64’s restrictions on obtaining DNA testing violate the Due Process Clause of the Fourteenth Amendment. See ante, at 3–5.
To make sense of Gutierrez’s claim, we must first understand what rights the Due Process Clause protects. The Clause provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Amdt. 14, §1. In other words, the State cannot decide to take away an individual’s life, liberty, or property unless it adheres to certain procedures. But, the Due Process Clause does not protect all rights—only life, liberty, and property. Thus, the first step in any due process analysis is to determine whether the right that the individual asserts falls within one of these three categories. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 570–571 (1972). If it does not, the “requirements” of due process do not “apply.” Ibid.
By seeking to execute Gutierrez and to imprison him until his execution, Texas undoubtedly seeks to deprive Gutierrez of his life and liberty. Yet, Gutierrez rightly does not base his due process claim on either of these deprivations, because he has received far more than the process required to justify them. Under our precedents, Texas must conduct a trial before it can imprison or execute a person as punishment for a crime. See Herrera v. Collins, 506 U. S. 390, 398–399 (1993). But, the “State is not required by the Federal Constitution to provide . . . a right to appellate review.” Griffin v. Illinois, 351 U. S. 12, 18 (1956) (plurality opinion); accord, id., at 21 (Frankfurter, J., concurring in judgment); McKane v. Durston, 153 U. S. 684, 687 (1894). Nor need it provide “[p]ostconviction relief,” which “is even further removed from the criminal trial.” Pennsylvania v. Finley, 481 U. S. 551, 556–557 (1987). Texas thus gave Gutierrez at his 1999 trial all the process necessary to imprison and execute him. The ensuing quarter century of direct and collateral review has been additional process above the constitutional floor.
Gutierrez instead asserts that he has a distinct “ ‘liberty interest’ ” in Texas’s “state-created right to postconviction” relief. Ante, at 6–7. In Gutierrez’s view, part of the “liberty” that Texas prisoners enjoy under the Fourteenth Amendment is a right to obtain release pursuant to Texas’s habeas statute, which the State takes away every time its courts deny habeas relief. Thus, Gutierrez contends, if Texas law does not afford prisoners sufficient procedural rights to bolster their habeas petitions—such as, in his case, access to DNA testing—the State has deprived them of liberty without the due process of law.2
Gutierrez bases his asserted interest on this Court’s decision in District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52 (2009). There, the Court concluded that a prisoner has a “postconviction liberty interest” under the Due Process Clause if state law grants him “an entitlement . . . to prove his innocence even after a fair trial has proved otherwise.” Id., at 67–68.
II
The Fourteenth Amendment does not protect Gutierrez’s asserted “liberty interest.” As originally understood, “liberty” in the Fourteenth Amendment likely referred only to freedom from physical restraint. It did not include entitlements to government-created benefits. This Court’s contrary precedent stems from a conscious, policy-based rejection of the Due Process Clause’s original meaning.
A
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.
As with any legal text, we must construe the Fourteenth Amendment according to the ordinary meaning of its terms at the time of its enactment. Gibbons v. Ogden, 9 Wheat. 1, 188–189 (1824); T. Cooley, Constitutional Limitations 55 (1868). We may not defer to “demonstrably erroneous” precedents that are inconsistent with the Amendment’s original meaning. Gamble v. United States, 587 U. S. 678, 717–718 (2019) (Thomas, J., concurring).
When the Fourteenth Amendment was adopted in 1868, its Due Process Clause was understood to embody an “old . . . principle” dating back to Magna Carta, the great 13th-century charter of English liberties. Munn v. Illinois, 94 U. S. 113, 123–124 (1877). Magna Carta provided that a “free man” may not be “prosecute[d],” “imprisoned,” or “destroyed” except “by the law of the land.” Magna Carta, ch. 39 (1215), in A. Howard, Magna Carta: Text and Commentary 43 (1964). A century later, a statute interpreting this “law of the land” provision stated that “no Man” shall be “imprisoned” or “put to Death, without being brought in Answer by due Process of the Law.” 28 Edw. III, c. 3 (1354); see also 1 E. Coke, The Second Part of the Institutes of the Laws of England 50 (1642) (interpreting “by the Law of the Land” to be equivalent to “by due Process of the Common law”).
Blackstone referred to Magna Carta’s “law of the land” provision as protecting the three “absolute rights of every Englishman”: the “right of personal security,” including “life”; “the right of personal liberty”; and “the right of private property.” 1 W. Blackstone, Commentaries on the Laws of England 123, 125 (1765) (Blackstone). This formulation “heavily” influenced the founding generation of America. Obergefell v. Hodges, 576 U. S. 644, 724 (2015) (Thomas, J., dissenting). Many early state constitutions contained provisions “that replicated Magna Carta’s language, but were modified to refer specifically to ‘life, liberty, or property.’ ” Ibid., and n. 3 (collecting examples). And, the Fifth Amendment similarly prohibited the Federal Government from depriving any person “of life, liberty, or property, without due process of law.”
“Liberty” in the Fifth Amendment likely refers only to freedom from physical restraint. Blackstone defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 Black stone 130. Following Blackstone, “[s]tate decisions interpreting [state due process] provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word ‘liberty’ to refer only to freedom from physical restraint.” Obergefell, 576 U. S., at 724–725 (Thomas, J., dissenting) (citing C. Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441–445 (1926) (Warren)). In light of this history, “it is hard to see how the ‘liberty’ protected by the [Fifth Amendment] could be interpreted to include anything broader.” 576 U. S., at 725 (Thomas, J., dissenting).
“If the Fifth Amendment uses ‘liberty’ in this narrow sense, then the Fourteenth Amendment likely does as well.” Ibid. When the language of a provision “is obviously transplanted from another legal source, it brings the old soil with it.” Taggart v. Lorenzen, 587 U. S. 554, 560 (2019) (internal quotation marks omitted). Applying that well-established principle, this Court has long recognized the Fourteenth Amendment’s due process protections as having “the same sense” as the Fifth Amendment’s. Hurtado v. California, 110 U. S. 516, 534–535 (1884); accord, Slaughter-House Cases, 16 Wall. 36, 80–81 (1873); Hibben v. Smith, 191 U. S. 310, 325 (1903); Malinski v. New York, 324 U. S. 401, 415 (1945) (opinion of Frankfurter, J.).3
It was not until the Lochner era that this Court adopted a broader understanding of “liberty.” During that period, stretching from 1897 to 1937, this Court relied on the “legal fiction” of “substantive” due process to invalidate disfavored social and economic legislation by States. McDonald v. Chicago, 561 U. S. 742, 811 (2010) (Thomas, J., concurring in part and concurring in judgment). Under that fiction, the Due Process Clauses forbade all government infringement on “certain ‘fundamental’ liberty interests . . . , no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993). To make the fiction work, the Court reinterpreted the Clauses’ guarantee of “ ‘process’ ” to encompass “substance,” a notion that “strains credulity for even the most casual user of words.” McDonald, 561 U. S., at 811 (opinion of Thomas, J.).
The Court’s embrace of substantive due process also required it to jettison the concept of “liberty” as only freedom from restraint, so that it could encompass other rights that the Court deemed “fundamental.” In Allgeyer v. Louisiana, 165 U. S. 578 (1897), this Court’s first substantive due process decision under the Fourteenth Amendment, the Court for the first time broadened the definition of “liberty” to include the freedom of contract. Id., at 589; see Warren 445–449 (tracing the interpretation of “liberty” from the Fourteenth Amendment’s ratification to Allgeyer). By the height of the Lochner era, the Court had stretched the term to cover “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390, 399 (1923). These privileges included “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 children,” and “to worship God according to the dictates of his own conscience.” Ibid.
This Court eventually repudiated Lochner’s muscular version of substantive due process—at least for economic rights. See Ferguson v. Skrupa, 372 U. S. 726, 730 (1963); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937). But, the Court continues to treat Meyer’s definition of “liberty” as authoritative. E.g., Roth, 408 U. S., at 572.
B
Gutierrez’s claim of a state-created “liberty interest” in obtaining post-conviction relief is inconsistent with the original understanding of “liberty.” From the founding through the Lochner era, “liberty” was understood to be a natural, pre-political right. Such an understanding is fundamentally incompatible with a “right” bestowed by the government.
Blackstone squarely framed life, liberty, and property as natural rights that existed before government. In an account “heavily influenced” by the political theories of John Locke, Obergefell, 576 U. S., at 726–727, n. 4 (Thomas, J., dissenting), Blackstone explained that, in the state of nature, every man has the “power of acting as [he] thinks fit, without any restraint or control.” 1 Blackstone 121. When man “enters into society, [he] gives up a part of his natural liberty” to enjoy the rest of it in security. Ibid. Thus, the liberty that each man enjoys as “a member of society, is no other than natural liberty so far restrained by human laws . . . as is necessary and expedient for the general advantage of the publick.” Ibid. This includes “the absolute rights” of life, liberty, and property, which exist in the “state of nature, and which every man is intitled to enjoy whether out of society or in it.” Id., at 119 (emphasis deleted). In other words, according to Blackstone, life, liberty, and property are rights that predate government and that were not surrendered when government was established; they are not entitlements that the government can bestow by positive law.
Founding-era Americans shared this understanding of liberty. The Lockean “idea of civil liberty as natural liberty constrained by human law” “permeated the 18th-century political scene in America.” Obergefell, 576 U. S., at 726–728 (Thomas, J., dissenting). For instance, the Virginia Declaration of Rights of 1776—“the first of the colonial bills of rights,” Klopfer v. North Carolina, 386 U. S. 213, 225 (1967)—proclaimed that “all men . . . by nature” possess the “inherent rights” of “life,” “liberty,” and “property,” which they retain “when they enter into a state of society.” §I, in 1 Milestone Documents in American History 154 (P. Finkelman ed. 2008) (Finkelman). Similarly, the Declaration of Independence asserts that the “unalienable rights” of “Life, Liberty, and the pursuit of Happiness” come from the “Creator,” and that, “to secure these rights, governments are instituted among Men.” ¶2.
The understanding of liberty as a natural right persisted until well after the enactment of the Fourteenth Amendment. Even as this Court expanded the notion of “liberty” in the Lochner era, it remained faithful to the idea of liberty as “individual freedom from governmental action, not as a right to a particular governmental entitlement.” Obergefell, 576 U. S., at 726 (Thomas, J., dissenting). None of the liberties enumerated in Meyer, for instance, could be characterized as state-created benefits. See 262 U. S., at 399. To the contrary, when interpreting the Due Process Clauses, the Court distinguished between rights inherent to the individual and privileges established by the government. The Court recognized, for example, that a prisoner’s statutory entitlement to early release on parole was a “privilege” that “comes as an act of grace to one convicted of a crime,” not a right protected by the Due Process Clauses. Escoe v. Zerbst, 295 U. S. 490, 492–493 (1935).
In short, entitlements established by the government cannot be “liberty” under the Due Process Clause of the Fourteenth Amendment. Gutierrez thus has no “liberty interest” in Texas’s state-created right to post-conviction relief.
C
Gutierrez rests the legitimacy of his due process claim on Osborne, which concluded that a prisoner has a “ ‘liberty interest’ ” when state law gives him “an entitlement . . . to prove his innocence even after a fair trial has proved otherwise.” 557 U. S., at 67. But, Osborne did not base this conclusion on the original meaning of “liberty” in the Fourteenth Amendment. It instead relied on a line of cases ultimately tracing back to Goldberg v. Kelly, 397 U. S. 254 (1970), where this Court relied on policy considerations to redefine “property” to include government entitlements.
Scholars generally agree that the term “property” in the Due Process Clauses originally referred only to those interests traditionally recognized as property at common law. See, e.g., 1 K. Hickman & R. Pierce, Administrative Law §7.4, pp. 903–904 (7th ed. 2024); G. Lawson, Federal Administrative Law 350 (1998); L. Tribe, American Constitutional Law §10–8, pp. 680–681 (2d ed. 1988). Property at common law did not include entitlements to government benefits. See 2 Blackstone 16–19, 384–399; J. Kent, Commentaries on American Law 324–330, 613–614 (W. Browne ed. 1894) (Kent). And, consistent with their general view of civil liberties, Americans at the founding and in the early Republic viewed property—like liberty—as a natural, pre-political right. See, e.g., Virginia Declaration of Rights, §I, in Finkelman 154; Calder v. Bull, 3 Dall. 386, 388–389 (1798) (opinion of Chase, J.); H. Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States 136 (1837); Kent 203.
The understanding of property as a natural right persisted through the ratification of the Fourteenth Amendment. After the Civil War, this Court held that a statute- of-limitations defense was not “property” within the meaning of the Constitution because it “is the creation of conventional law,” not a “natural right.” Campbell v. Holt, 115 U. S. 620, 629 (1885). And, state-court decisions in the years leading up to and immediately following the Amendment’s ratification continued to recognize property as a natural right. See, e.g., People v. Quant, 12 How. Pr. 83, 89 (NY Sup. Ct. 1855); Sherman v. Buick, 32 Cal. 241, 249 (1867); Munn v. People, 69 Ill. 80, 96 (1873), aff ’d, 94 U. S. 113.
Consistent with this view, “it has traditionally been held” that the Due Process Clauses do not apply where it is “possible to characterize [the asserted] private interest . . . as a mere privilege subject to the [government’s] plenary power.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 895 (1961). Thus, from the antebellum period to the 1960s, this Court consistently recognized that government employment, veterans’ benefits, admission to the country as an alien, and other government-created entitlements are not property or otherwise cognizable interests under the Due Process Clauses. See, e.g., United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950); Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 340–343 (1909); Buttfield v. Stranahan, 192 U. S. 470, 497 (1904); Taylor v. Beckham, 178 U. S. 548, 576 (1900); Crenshaw v. United States, 134 U. S. 99, 104 (1890); United States v. Teller, 107 U. S. 64, 68 (1883); Butler v. Pennsylvania, 10 How. 402, 416 (1851); Kendall v. United States ex rel. Stokes, 12 Pet. 524, 592–593 (1838).
In the 1960s, Professor Charles Reich of the Yale Law School published two articles proposing a radical reinterpretation of the concept of property. See Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245 (1965) (Individual Rights); The New Property, 73 Yale L. J. 733 (1964) (The New Property). Taking direct aim at the Framers’ understanding, Reich argued that “[p]roperty is not a natural right but a deliberate construction by society” that could be redefined to meet contemporary social needs. Id., at 771. In his view, the rise of “the welfare state” and the dependence it fostered meant that “each man cannot be wholly the master of his own destiny.” Id., at 786. Thus, he concluded, to protect the now-dependent citizenry from arbitrary government power, the legal system must “mak[e government] benefits into rights” akin to traditional property rights. Ibid. In other words, “[w]e must create a new property.” Id., at 787.
This Court embraced Reich’s vision in 1970, holding that “welfare benefits” are property under the Fourteenth Amendment’s Due Process Clause because they “are a matter of statutory entitlement for persons qualified to receive them.” Goldberg, 397 U. S., at 261–262. The Court dismissed any distinction between “a ‘privilege’ and . . . a ‘right,’ ” and did not attempt to ground its conclusion in the text or history of the Due Process Clause. Id., at 262 (some internal quotation marks omitted). The Court instead gave a sociological justification, “simply highlight[ing] the social importance of ‘entitlements,’ which had come to make up ‘[m]uch of the existing wealth in this country,’ and which only the poor had been theretofore unable to effectively enforce.” Williams v. Reed, 604 U. S. ___, ___–___, n. (2025) (Thomas, J., dissenting) (slip op., at 3–4, n.); see Goldberg, 397 U. S., at 262, and n. 8 (citing Individual Rights 1255; The New Property).
Soon after Goldberg’s radical redefinition of “property” to include government-created entitlements, this Court redefined “liberty” along similar lines. The Court held that, in at least some circumstances, the denial of parole triggered the Due Process Clause because “a person’s liberty is equally protected, even when the liberty itself is a statutory creation of the State.” Wolff v. McDonnell, 418 U. S. 539, 558 (1974); accord, Meachum v. Fano, 427 U. S. 215, 226 (1976). To justify this shift, the Court relied on “the accepted due process analysis as to property.” Wolff, 418 U. S., at 557–558; accord, Meachum, 427 U. S., at 226 (citing Goldberg, 397 U. S. 254); see also Evitts v. Lucey, 469 U. S. 387, 400–401 (1985) (citing Goldberg, 397 U. S., at 262).
As with property, the Court’s redefinition of “liberty” was a conscious break with the past. The Court rejected the inquiry of “whether [a] parolee’s liberty is a ‘right’ or a ‘privilege’ ” as “hardly useful any longer.” Morrissey v. Brewer, 408 U. S. 471, 482 (1972) (emphasis added). It expressly repudiated its earlier case law holding that probation, as “an ‘act of grace,’ ” triggers no due process protections. See Gagnon v. Scarpelli, 411 U. S. 778, 782, n. 4 (1973) (quoting Escoe, 295 U. S., at 492). And, seemingly to obfuscate the awkwardness of referring to a government-created entitlement as “liberty,” the Court began to speak instead of “liberty interests.” Kenosha v. Bruno, 412 U. S. 507, 515 (1973) (internal quotation marks omitted). Although it is now standard terminology in due process litigation, the phrase did not appear in the United States Reports before Goldberg.
Osborne relied on this line of cases to recognize a “liberty interest” in post-conviction procedures. Invoking the language of Goldberg, the Court asserted that a prisoner has a “liberty interest” in a State’s post-conviction procedures if those procedures confer “an entitlement . . . to prove his innocence” after trial. 557 U. S., at 67 (emphasis added). And, to establish that an entitlement of this kind can give rise to a viable due process claim, the Court cited Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458, 463 (1981), and Wolff, 418 U. S., at 556–558, both of which relied on this Court’s post-Goldberg redefinition of “property.”4 See 557 U. S., at 68.
Osborne thus cannot support Gutierrez’s asserted “liberty interest.” We may, consistent with the judicial power, defer to earlier decisions that “apply traditional tools of construction and arrive at different,” but reasonable, “interpretations of legal texts.” Gamble, 587 U. S., at 721 (Thomas, J., concurring). But, Osborne rests on nothing more than Goldberg’s abandonment of the Due Process Clause’s original meaning.
III
We should correct the error we made in Osborne, which seriously undermines States’ interests in finality and in providing relief to compelling claims of actual innocence. At the very least, we should cease finding novel ways to revive due process challenges to post-conviction DNA testing procedures, as the Court does today.
In enacting Chapter 64, Texas has voluntarily chosen to prioritize claims of actual innocence at a significant cost to its interest in finality. Thanks in no small part to decisions of this Court, capital cases today are routinely plagued by decades-long delays between sentencing and execution, with much of the litigation concerning convoluted procedural issues having little or nothing to do with the guilt or innocence of the defendant. See Baze v. Rees, 553 U. S. 35, 69–70 (2008) (Alito, J., concurring); id., at 92 (Scalia, J., concurring in judgment). This delay undermines the “important interest” that both “the State and the victims of crime have . . . in the timely enforcement of a sentence.” Hill v. McDonough, 547 U. S. 573, 584 (2006). In spite of these interests, Texas has willingly decided to make freestanding actual-innocence claims cognizable on post- conviction review and to create a process for obtaining DNA testing to support such claims. In this respect, Texas is more generous to capital defendants than the Federal Government, which offers no statutory mechanism for raising a freestanding actual-innocence claim. See Herrera, 506 U. S., at 400.
By recognizing a “liberty interest” in Texas’s post- conviction procedures, however, this Court has converted those procedures from a means of vindicating compelling claims of actual innocence into a tool for obstruction. In addition to trial, direct appeal, and multiple rounds of collateral review in state and federal court, Texas must now prevail in yet another arena—§1983 litigation challenging its DNA testing procedures—before it can carry out its lawfully imposed sentences. See Rev. Stat. §1979, 42 U. S. C. §1983. And, given the novelty of this litigation, such suits give rise to a host of difficult threshold justiciability questions that must be resolved before a federal court can reach the merits of the due process challenge, much less before a state court can resolve the prisoner’s claim of actual innocence.
We need look no further than this case. Twenty-six years after the brutal murder of Escolastica Harrison, this Court stayed Gutierrez’s impending execution. 603 U. S. ___ (2024). Why? Not because Gutierrez had made a compelling allegation of innocence. Rather, the Court stayed the execution to decide whether Gutierrez has standing to raise a due process challenge to Texas’s post-conviction procedures. There is every reason to think that the ultimate claim of actual innocence on which Gutierrez’s case rests is baseless. The key premise that Gutierrez hopes that DNA testing will establish—that he was not inside Harrison’s home when she was stabbed to death with a pair of screwdrivers—is contradicted by his own confession, to say nothing of the unanimous statements of his accomplices. See post, at 2–3 (Alito, J., dissenting). The TCCA has held three times that Gutierrez would likely still have been convicted of capital murder as an accomplice even if he could prove that he had not personally been inside Harrison’s home. See post, at 6–7. And, in Gutierrez’s most recent motion for DNA testing, the trial court explicitly found that Gutierrez had made the motion “for the purpose of unreasonably delaying the execution of [his] sentence.” App. 655a. In short, Texas could reasonably determine that the need for finality outweighed the upsides of giving Gutierrez additional process. Yet, because this Court has found a “liberty interest” where none exists, that judgment must be thwarted until this additional multiyear front of litigation reaches its conclusion. If this is what States can expect when they create new post-conviction avenues for raising actual-innocence claims, they may well conclude that doing so is not worth the cost.5
* * *
Gutierrez’s suit rests on a non-existent “liberty interest.” The Due Process Clause protects an individual’s natural liberty from government interference. It does not guarantee entitlements to government benefits, like Texas’s voluntarily adopted post-conviction procedures. By intervening to revive this suit, the Court facilitates precisely the “unjustified delay” that it is supposed to prevent in capital cases. Bucklew v. Precythe, 587 U. S. 119, 150 (2019). That is a misuse of our discretionary certiorari jurisdiction. I respectfully dissent.
Notes
1 I agree that the Court “flagrantly distorts the standard” that this Court articulated in Reed v. Goertz, 598 U. S. 230 (2023), by deeming irrelevant the independent grounds that the Texas courts have given for denying DNA testing to Gutierrez. Post, at 9–11 (Alito, J., dissenting). I also continue to believe that Reed made “chaos” of our standing doctrine. 598 U. S., at 255 (Thomas, J., dissenting). Even if the Texas courts had not articulated alternative grounds for denying Gutierrez testing, “an abstract declaration” that Texas’s limits on DNA testing are unconstitutional cannot redress any injury because it does not compel any “change in conduct” on the part of the district attorney. Id., at 249. Gutierrez’s real dispute is with the Texas courts for denying his motions for testing, but the Rooker-Feldman doctrine prohibits parties from attacking state-court judgments in federal district court. See Reed, 598 U. S., at 244–252 (Thomas, J., dissenting); Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U. S. 462 (1983).
2 Gutierrez also claims that executive clemency is a “liberty interest” that he cannot be denied without access to DNA testing. But, “noncapital defendants do not have a liberty interest in traditional state executive clemency.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 67 (2009); see Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458, 464 (1981). In Ohio Adult Parole Authority v. Woodard, 523 U. S. 272 (1998), Chief Justice Rehnquist concluded for a plurality of the Court that the same is true of capital defendants, because trial and sentencing extinguish the defendant’s “interest in not being executed in accord with his sentence.” Id., at 281. When applying for clemency, the “defendant in effect accepts the finality of the death sentence for purposes of adjudication, and appeals for clemency as a matter of grace.” Id., at 282. Justice O’Connor, in contrast, left open the possibility that “some minimal procedural safeguards apply to clemency proceedings,” such that a due process violation “might” occur if “a state official flipped a coin to determine whether to grant clemency.” Id., at 289 (opinion concurring in part and concurring in judgment). But, even if Justice O’Connor’s view is correct, Gutierrez plainly cannot rely on it to establish a due process violation. DNA testing is not necessary to make the Texas clemency process less arbitrary than a coin flip.
3 Some decisions of this Court, while recognizing the general principle that the Fifth and Fourteenth Amendments’ Due Process Clauses should be read together, have left open the possibility “that questions may arise in which different constructions and applications of [the Clauses] may be proper.” French v. Barber Asphalt Paving Co., 181 U. S. 324, 328 (1901). Even assuming that caveat is correct, however, reading “liberty” in the Fourteenth Amendment to mean fundamental rights generally, see infra this page and 8, would appear to render the Fourteenth Amendment so broad that it would destroy the general rule that the Fifth and Fourteenth Amendments should be read coextensively. And, even if “liberty” in the Fourteenth Amendment were entirely decoupled from its meaning in the Fifth Amendment, I am aware of nothing showing that the term was understood to encompass government entitlements before the 1970s. See infra, at 10–13.
4 Wolff invoked “the accepted due process analysis as to property” to hold that a “statutory right to good time” credits constituted a liberty interest. 418 U. S., at 557–558. Dumschat relied on Wolff and Meachum v. Fano, 427 U. S. 215, 226 (1976), to establish that a “ ‘state-created right’ ” can be a cognizable liberty interest. 452 U. S., at 463. Meachum cited Goldberg for that point. 427 U. S., at 226.
5 Our two earlier cases addressing due process challenges to Texas’s DNA testing procedures followed a similar pattern. In both cases, the Court intervened long after sentencing to address threshold procedural issues in the petitioner’s federal due process suits. See Reed, 598 U. S., at 232–233 (addressing the timeliness of petitioner’s due process suit 25 years after sentencing); Skinner v. Switzer, 562 U. S. 521, 525 (2011) (addressing the availability of §1983 as a cause of action 16 years after sentencing).
Thank you for reading Von’s Substack. I would love it if you commented! I love hearing from readers, especially critical comments. I would love to start more letter exchanges, so if there’s a subject you’re interested in, get writing and tag me!Thank you for reading Von’s Substack. I would love it if you commented! I love hearing from readers, especially critical comments. I would love to start more letter exchanges, so if there’s a subject you’re interested in, get writing and tag me!
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Thanks again, God Bless, Soli Deo gloria,
Von
I am confused. Was the man complaining that Texas wouldn't let him take a DNA test, even though he had refused it earlier?