quist acknowledged that "a constitutionally protected liberty interest in refusing unwanted medical care may be inferred from our prior decisions." At least when a person's competency is not controverted, the Court found that "the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment." With respect to the standards for discontinuing life support, it determined that they afforded safeguards against potential abuse and thereby justified the state's interest. Although the Court did not strike down the law, the process of balancing competing interests revealed the continuing vitality of substantive due process analysis. Like decisions in the Lochner era when the Court was convinced of a legitimate purpose, the Court in Cruzan independently examined rather than entirely deferred to legislative judgment. Such inquiry into the relation between legislative means and ends prompted the objection by Justice Scalia that the Court "has no authority to inject itself into every field of human activity where irrationality and oppression may theoretically occur, and if it tries to do so it will destroy itself." For Justice Scalia, as for Justice Black, the best resolution of the fundamental rights dilemma is for the Court to abandon substantive due process review altogether.
Activation of the due process clause in substantive terms and reaction to it perpetuate a debate over the role of the judiciary that is virtually as old as the Constitution. In his Lochner dissent, Holmes identified the dangers of value-driven development of fundamental rights but at the same time allowed for it to some extent. Modern fundamental rights review remains mired in debate over that "extent." Like Holmes, modern due process analysis disclaims any ideological imperative. Borrowing from the second Justice Harlan, the Court also has suggested that "[a]ppropriate limits" are set "from careful 'respect for the teachings of history' [and] solid recognition of the basic values that are rooted in our society." Actual results, virtually ordained by the literal terms of the Holmesian formula, would seem to indicate that repudiation of Lochner does not eliminate the possibility of Lochnerist results.
Adkins v. Children's Hospital, 261 U.S. 525 ( 1923).
Allgeyer v. Louisiana, 165 U.S. 578 ( 1897).
Baldwin v. Missouri, 281 U.S. 586 ( 1930).
Belle Terre, Village of, v. Boraas, 416 U.S. 1 ( 1974).
Bowers v. Hardwick, 478 U.S. 186 ( 1986).
Buchanan v. Warley, 245 U.S. 60 ( 1917).
Cruzan v. Director, Missouri Department of Health, 110 S.Ct. 2841 ( 1990).