Anthony Kennedy

“ If it is plain that a plaintiff's required malice allegations are insufficient but there is some doubt as to the constitutional right asserted, it seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first. ”

“ As revealed by the differences in our majority and dissenting opinions, the question whether petitioner asserted the deprivation of a liberty interest protected by the Constitution, under the principles explained in Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) , is itself one of some difficulty. In my view, it is unwise to resolve the point without the benefit of a decision by the Court of Appeals and full briefing and argument here. ”