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McCutcheon v. Federal Election Comm'n

2014-04-02

https://www.courtlistener.com/opinion/2659301/mccutcheon-v-federal-election-commn/

https://www.courtlistener.com/api/rest/v3/clusters/2659301/

2013-033

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citi- zens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Con- gress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26–27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise 2 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24–25). Many people might find those latter objectives attrac- tive: They would be delighted to see fewer television com- mercials touting a candidate’s accomplishments or dispar- aging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. See Texas v. Johnson, 491 U.S. 397 (1989); Snyder v. Phelps, 562 U. S. ___ (2011); National Socialist Party of America v. Skokie, 432 U.S. 43 (1977) (per curiam). Indeed, as we have empha- sized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit polit- ical speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Elec- tion Comm’n, 558 U.S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be respon- sive to those concerns. Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. See id., at 359. That Latin phrase captures the notion of a direct Cite as: 572 U. S. ____ (2014) 3 Opinion of ROBERTS, C. J. exchange of an official act for money. See McCormick v. United States, 500 U.S. 257, 266 (1991). “The hallmark of corruption is the financial quid pro quo: dollars for po- litical favors.” Federal Election Comm’n v. National Con- servative Political Action Comm., 470 U.S. 480, 497 (1985). Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett, supra, at ___ (slip op., at 25). And those who govern should be the last people to help decide who should govern. The statute at issue in this case imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee. 2 U.S. C. §441a(a)(1). The second, called aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees. §441a(a)(3). This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption. The Gov- ernment contends that the aggregate limits also serve that objective, by preventing circumvention of the base limits. We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously re- stricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment. I A For the 2013–2014 election cycle, the base limits in the Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), permit an individual to contribute up to $2,600 per election to a candidate ($5,200 total for the primary 4 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. and general elections); $32,400 per year to a national party committee;1 $10,000 per year to a state or local party committee; and $5,000 per year to a political action com- mittee, or “PAC.” 2 U.S. C. §441a(a)(1); 78 Fed. Reg. 8532 (2013).2 A national committee, state or local party com- mittee, or multicandidate PAC may in turn contribute up to $5,000 per election to a candidate. §441a(a)(2).3 The base limits apply with equal force to contributions that are “in any way earmarked or otherwise directed through an intermediary or conduit” to a candidate. §441a(a)(8). If, for example, a donor gives money to a party committee but directs the party committee to pass the contribution along to a particular candidate, then the transaction is treated as a contribution from the original donor to the specified candidate. For the 2013–2014 election cycle, the aggregate limits in BCRA permit an individual to contribute a total of $48,600 to federal candidates and a total of $74,600 to other politi- cal committees. Of that $74,600, only $48,600 may be contributed to state or local party committees and PACs, —————— 1 Thereare six authorized national party committees: the Republican National Committee, the Democratic National Committee, the National Republican Senatorial Committee, the Democratic Senatorial Cam- paign Committee, the National Republican Congressional Committee, and the Democratic Congressional Campaign Committee. See 2 U.S. C. §431(14). 2 A PAC is a business, labor, or interest group that raises or spends money in connection with a federal election, in some cases by contrib- uting to candidates. A so-called “Super PAC” is a PAC that makes only independent expenditures and cannot contribute to candidates. The base and aggregate limits govern contributions to traditional PACs, but not to independent expenditure PACs. See SpeechNow.org v. Federal Election Comm’n, 599 F.3d 686, 695–696 (CADC 2010) (en banc). 3 A multicandidate PAC is a PAC with more than 50 contributors that has been registered for at least six months and has made contributions to five or more candidates for federal office. 11 CFR §100.5(e)(3) (2012). PACs that do not qualify as multicandidate PACs must abide by the base limit applicable to individual contributions. Cite as: 572 U. S. ____ (2014) 5 Opinion of ROBERTS, C. J. as opposed to national party committees. §441a(a)(3); 78 Fed. Reg. 8532. All told, an individual may contribute up to $123,200 to candidate and noncandidate committees during each two-year election cycle. The base limits thus restrict how much money a donor may contribute to any particular candidate or committee; the aggregate limits have the effect of restricting how many candidates or committees the donor may support, to the extent permitted by the base limits. B In the 2011–2012 election cycle, appellant Shaun McCutcheon contributed a total of $33,088 to 16 different federal candidates, in compliance with the base limits applicable to each. He alleges that he wished to contribute $1,776 to each of 12 additional candidates but was pre- vented from doing so by the aggregate limit on contribu- tions to candidates. McCutcheon also contributed a total of $27,328 to several noncandidate political committees, in compliance with the base limits applicable to each. He alleges that he wished to contribute to various other polit- ical committees, including $25,000 to each of the three Republican national party committees, but was prevented from doing so by the aggregate limit on contributions to political committees. McCutcheon further alleges that he plans to make similar contributions in the future. In the 2013–2014 election cycle, he again wishes to contribute at least $60,000 to various candidates and $75,000 to non-candidate political committees. Brief for Appellant McCutcheon 11–12. Appellant Republican National Committee is a national political party committee charged with the general man- agement of the Republican Party. The RNC wishes to receive the contributions that McCutcheon and similarly situated individuals would like to make—contributions otherwise permissible under the base limits for national 6 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. party committees but foreclosed by the aggregate limit on contributions to political committees. In June 2012, McCutcheon and the RNC filed a com- plaint before a three-judge panel of the U. S. District Court for the District of Columbia. See BCRA §403(a), 116 Stat. 113–114. McCutcheon and the RNC asserted that the aggregate limits on contributions to candidates and to noncandidate political committees were unconstitutional under the First Amendment. They moved for a prelimi- nary injunction against enforcement of the challenged provisions, and the Government moved to dismiss the case. The three-judge District Court denied appellants’ mo- tion for a preliminary injunction and granted the Govern- ment’s motion to dismiss. Assuming that the base limits appropriately served the Government’s anticorruption interest, the District Court concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits. 893 F. Supp. 2d 133, 140 (2012). In particular, the District Court imagined a hypothetical scenario that might occur in a world without aggregate limits. A single donor might contribute the maximum amount under the base limits to nearly 50 separate com- mittees, each of which might then transfer the money to the same single committee. Ibid. That committee, in turn, might use all the transferred money for coordinated expenditures on behalf of a particular candidate, allowing the single donor to circumvent the base limit on the amount he may contribute to that candidate. Ibid. The District Court acknowledged that “it may seem unlikely that so many separate entities would willingly serve as conduits” for the single donor’s interests, but it concluded that such a scenario “is not hard to imagine.” Ibid. It thus rejected a constitutional challenge to the aggregate limits, characterizing the base limits and the aggregate Cite as: 572 U. S. ____ (2014) 7 Opinion of ROBERTS, C. J. limits “as a coherent system rather than merely a collec- tion of individual limits stacking prophylaxis upon prophy- laxis.” Ibid. McCutcheon and the RNC appealed directly to this Court, as authorized by law. 28 U.S. C. §1253. In such a case, “we ha[ve] no discretion to refuse adjudication of the case on its merits,” Hicks v. Miranda, 422 U.S. 332, 344 (1975), and accordingly we noted probable jurisdiction. 568 U. S. ___ (2013). II A Buckley v. Valeo, 424 U.S. 1, presented this Court with its first opportunity to evaluate the constitutionality of the original contribution and expenditure limits set forth in FECA. FECA imposed a $1,000 per election base limit on contributions from an individual to a federal candidate. It also imposed a $25,000 per year aggregate limit on all contributions from an individual to candidates or political committees. 18 U.S. C. §§608(b)(1), 608(b)(3) (1970 ed., Supp. IV). On the expenditures side, FECA imposed limits on both independent expenditures and candidates’ overall campaign expenditures. §§608(e)(1), 608(c). Buckley recognized that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” 424 U.S., at 14. But it distinguished expenditure limits from contribution limits based on the degree to which each encroaches upon pro- tected First Amendment interests. Expenditure limits, the Court explained, “necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Id., at 19. The Court thus subjected expendi- ture limits to “the exacting scrutiny applicable to lim- itations on core First Amendment rights of political expression.” Id., at 44–45. Under exacting scrutiny, the 8 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated interest. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). By contrast, the Court concluded that contribution limits impose a lesser restraint on political speech because they “permit[ ] the symbolic expression of support evi- denced by a contribution but do[ ] not in any way infringe the contributor’s freedom to discuss candidates and is- sues.” Buckley, 424 U.S., at 21. As a result, the Court focused on the effect of the contribution limits on the freedom of political association and applied a lesser but still “rigorous standard of review.” Id., at 29. Under that standard, “[e]ven a ‘ “significant interference” with pro- tected rights of political association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” Id., at 25 (quot- ing Cousins v. Wigoda, 419 U.S. 477, 488 (1975)). The primary purpose of FECA was to limit quid pro quo corruption and its appearance; that purpose satisfied the requirement of a “sufficiently important” governmental interest. 424 U.S., at 26–27. As for the “closely drawn” component, Buckley concluded that the $1,000 base limit “focuses precisely on the problem of large campaign con- tributions . . . while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.” Id., at 28. The Court therefore upheld the $1,000 base limit under the “closely drawn” test. Id., at 29. The Court next separately considered an overbreadth challenge to the base limit. See id., at 29–30. The chal- lengers argued that the base limit was fatally overbroad Cite as: 572 U. S. ____ (2014) 9 Opinion of ROBERTS, C. J. because most large donors do not seek improper influence over legislators’ actions. Although the Court accepted that premise, it nevertheless rejected the overbreadth chal- lenge for two reasons: First, it was too “difficult to isolate suspect contributions” based on a contributor’s subjective intent. Id., at 30. Second, “Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.” Ibid. Finally, in one paragraph of its 139-page opinion, the Court turned to the $25,000 aggregate limit under FECA. As a preliminary matter, it noted that the constitution- ality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” Id., at 38. Then, in three sentences, the Court disposed of any constitutional objections to the aggregate limit that the challengers might have had: “The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and com- mittees with which an individual may associate him- self by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to po- litical committees likely to contribute to that candi- date, or huge contributions to the candidate’s political party. The limited, additional restriction on associa- tional freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual con- tribution limitation that we have found to be constitu- tionally valid.” Ibid. 10 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. B 1 The parties and amici curiae spend significant energy debating whether the line that Buckley drew between contributions and expenditures should remain the law. Notwithstanding the robust debate, we see no need in this case to revisit Buckley’s distinction between contributions and expenditures and the corollary distinction in the applicable standards of review. Buckley held that the Government’s interest in preventing quid pro quo corrup- tion or its appearance was “sufficiently important,” id., at 26–27; we have elsewhere stated that the same interest may properly be labeled “compelling,” see National Con- servative Political Action Comm., 470 U.S., at 496–497, so that the interest would satisfy even strict scrutiny. More- over, regardless whether we apply strict scrutiny or Buck- ley’s “closely drawn” test, we must assess the fit between the stated governmental objective and the means selected to achieve that objective. See, e.g., National Conservative Political Action Comm., supra, at 496–501; Randall v. Sorrell, 548 U.S. 230, 253–262 (2006) (opinion of BREYER, J.). Or to put it another way, if a law that restricts politi- cal speech does not “avoid unnecessary abridgement” of First Amendment rights, Buckley, 424 U.S., at 25, it cannot survive “rigorous” review. Because we find a substantial mismatch between the Government’s stated objective and the means selected to achieve it, the aggregate limits fail even under the “closely drawn” test. We therefore need not parse the differences between the two standards in this case. 2 Buckley treated the constitutionality of the $25,000 aggregate limit as contingent upon that limit’s ability to prevent circumvention of the $1,000 base limit, describing the aggregate limit as “no more than a corollary” of the Cite as: 572 U. S. ____ (2014) 11 Opinion of ROBERTS, C. J. base limit. Id., at 38. The Court determined that circum- vention could occur when an individual legally contributes “massive amounts of money to a particular candidate through the use of unearmarked contributions” to entities that are themselves likely to contribute to the candidate. Ibid. For that reason, the Court upheld the $25,000 ag- gregate limit. Although Buckley provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here. Buckley spent a total of three sentences analyzing that limit; in fact, the opinion pointed out that the consti- tutionality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” Ibid. We are now asked to address appellants’ direct challenge to the aggre- gate limits in place under BCRA. BCRA is a different statutory regime, and the aggregate limits it imposes operate against a distinct legal backdrop. Most notably, statutory safeguards against circumven- tion have been considerably strengthened since Buckley was decided, through both statutory additions and the introduction of a comprehensive regulatory scheme. With more targeted anticircumvention measures in place today, the indiscriminate aggregate limits under BCRA appear particularly heavy-handed. The 1976 FECA Amendments, for example, added an- other layer of base contribution limits. The 1974 version of FECA had already capped contributions from political committees to candidates, but the 1976 version added limits on contributions to political committees. This change was enacted at least “in part to prevent circumven- tion of the very limitations on contributions that this Court upheld in Buckley.” California Medical Assn. v. Federal Election Comm’n, 453 U.S. 182, 197–198 (1981) (plurality opinion); see also id., at 203 (Blackmun, J., concurring in part and concurring in judgment). Because 12 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. a donor’s contributions to a political committee are now limited, a donor cannot flood the committee with “huge” amounts of money so that each contribution the committee makes is perceived as a contribution from him. Buckley, supra, at 38. Rather, the donor may contribute only $5,000 to the committee, which hardly raises the specter of abuse that concerned the Court in Buckley. Limits on contributions to political committees consequently create an additional hurdle for a donor who seeks both to channel a large amount of money to a particular candidate and to ensure that he gets the credit for doing so. The 1976 Amendments also added an antiprolifera- tion rule prohibiting donors from creating or controlling multiple affiliated political committees. See 2 U.S. C. §441a(a)(5); 11 CFR §100.5(g)(4). The Government ac- knowledges that this antiproliferation rule “forecloses what would otherwise be a particularly easy and effective means of circumventing the limits on contributions to any particular political committee.” Brief for Appellee 46. In effect, the rule eliminates a donor’s ability to create and use his own political committees to direct funds in excess of the individual base limits. It thus blocks a straightfor- ward method of achieving the circumvention that was the underlying concern in Buckley. The intricate regulatory scheme that the Federal Elec- tion Commission has enacted since Buckley further limits the opportunities for circumvention of the base limits via “unearmarked contributions to political committees likely to contribute” to a particular candidate. 424 U.S., at 38. Although the earmarking provision, 2 U.S. C. §441a(a)(8), was in place when Buckley was decided, the FEC has since added regulations that define earmarking broadly. For example, the regulations construe earmarking to include any designation, “whether direct or indirect, express or implied, oral or written.” 11 CFR §110.6(b)(1). The regu- lations specify that an individual who has contributed to a Cite as: 572 U. S. ____ (2014) 13 Opinion of ROBERTS, C. J. particular candidate may not also contribute to a single- candidate committee for that candidate. §110.1(h)(1). Nor may an individual who has contributed to a candidate also contribute to a political committee that has supported or anticipates supporting the same candidate, if the individ- ual knows that “a substantial portion [of his contribution] will be contributed to, or expended on behalf of,” that candidate. §110.1(h)(2). In addition to accounting for statutory and regulatory changes in the campaign finance arena, appellants’ chal- lenge raises distinct legal arguments that Buckley did not consider. For example, presumably because of its cursory treatment of the $25,000 aggregate limit, Buckley did not separately address an overbreadth challenge with respect to that provision. The Court rejected such a challenge to the base limits because of the difficulty of isolating suspect contributions. The propriety of large contributions to in- dividual candidates turned on the subjective intent of donors, and the Court concluded that there was no way to tell which donors sought improper influence over legisla- tors’ actions. See 424 U.S., at 30. The aggregate limit, on the other hand, was upheld as an anticircumvention measure, without considering whether it was possible to discern which donations might be used to circumvent the base limits. See id., at 38. The Court never addressed overbreadth in the specific context of aggregate limits, where such an argument has far more force. Given the foregoing, this case cannot be resolved merely by pointing to three sentences in Buckley that were writ- ten without the benefit of full briefing or argument on the issue. See Toucey v. New York Life Ins. Co., 314 U.S. 118, 139–140 (1941) (departing from “[l]oose language and a sporadic, ill-considered decision” when asked to resolve a question “with our eyes wide open and in the light of full consideration”); Hohn v. United States, 524 U.S. 236, 251 (1998) (departing from a prior decision where it 14 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. “was rendered without full briefing or argument”). We are confronted with a different statute and different legal arguments, at a different point in the development of campaign finance regulation. Appellants’ sub- stantial First Amendment challenge to the system of aggregate limits currently in place thus merits our plenary consideration.4 III The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” Cohen v. California, 403 U.S. 15, 24 (1971). As relevant here, the First Amendment safe- guards an individual’s right to participate in the public debate through political expression and political associa- tion. See Buckley, 424 U.S., at 15. When an individual contributes money to a candidate, he exercises both of those rights: The contribution “serves as a general expres- sion of support for the candidate and his views” and “serves to affiliate a person with a candidate.” Id., at 21–22. Those First Amendment rights are important regardless whether the individual is, on the one hand, a “lone pam- phleteer[ ] or street corner orator[ ] in the Tom Paine mold,” or is, on the other, someone who spends “substan- —————— 4 The dissent contends that we should remand for development of an evidentiary record before answering the question with which we were presented. See post, at 28–30 (opinion of BREYER, J). But the parties have treated the question as a purely legal one, and the Government has insisted that the aggregate limits can be upheld under the existing record alone. See Tr. of Oral Arg. 43, 55–56. We take the case as it comes to us. Cite as: 572 U. S. ____ (2014) 15 Opinion of ROBERTS, C. J. tial amounts of money in order to communicate [his] polit- ical ideas through sophisticated” means. National Con- servative Political Action Comm., 470 U.S., at 493. Either way, he is participating in an electoral debate that we have recognized is “integral to the operation of the system of government established by our Constitution.” Buckley, supra, at 14. Buckley acknowledged that aggregate limits at least diminish an individual’s right of political association. As the Court explained, the “overall $25,000 ceiling does impose an ultimate restriction upon the number of candi- dates and committees with which an individual may asso- ciate himself by means of financial support.” 424 U.S., at 38. But the Court characterized that restriction as a “quite modest restraint upon protected political activity.” Ibid. We cannot agree with that characterization. An aggregate limit on how many candidates and committees an individual may support through contributions is not a “modest restraint” at all. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candi- dates it may endorse. To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the pri- mary and general election campaigns of ten or more can- didates, even if all contributions fall within the base limits Congress views as adequate to protect against corruption. The individual may give up to $5,200 each to nine candi- dates, but the aggregate limits constitute an outright ban on further contributions to any other candidate (beyond the additional $1,800 that may be spent before reaching the $48,600 aggregate limit). At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have 16 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. to choose which of several policy concerns he will ad- vance—clear First Amendment harms that the dissent never acknowledges. It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process. And as we have recently admonished, the Gov- ernment may not penalize an individual for “robustly exercis[ing]” his First Amendment rights. Davis v. Federal Election Comm’n, 554 U.S. 724, 739 (2008). The First Amendment burden is especially great for individuals who do not have ready access to alternative avenues for supporting their preferred politicians and policies. In the context of base contribution limits, Buck- ley observed that a supporter could vindicate his associa- tional interests by personally volunteering his time and energy on behalf of a candidate. See 424 U.S., at 22, 28. Such personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes. Other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single even- ing. Cf. Davis, supra, at 742.5 The dissent faults this focus on “the individual’s right to engage in political speech,” saying that it fails to take into account “the public’s interest” in “collective speech.” Post, at 6 (opinion of BREYER, J). This “collective” interest is —————— 5 See, e.g., Felsenthal, Obama Attends Fundraiser Hosted by Jay-Z, Beyonce, Reuters, Sept. 18, 2012; Coleman, Kid Rock Supports Paul Ryan at Campaign Fundraiser, Rolling Stone, Aug. 25, 2012; Mason, Robert Duvall to Host Romney Fundraiser, L. A. Times, July 25, 2012; Piazza, Hillary Lands 2.5M with Rocket Man, N. Y. Daily News, Apr. 10, 2008, p. 2. Cite as: 572 U. S. ____ (2014) 17 Opinion of ROBERTS, C. J. said to promote “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.” Post, at 7. But there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. First, the dis- sent’s “collective speech” reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amend- ment is to afford individuals protection against such in- fringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting “collective speech.” Cf. United States v. Alvarez, 567 U. S. ___ (2012); Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943). Second, the degree to which speech is protected cannot turn on a legislative or judicial determination that partic- ular speech is useful to the democratic process. The First Amendment does not contemplate such “ad hoc balancing of relative social costs and benefits.” United States v. Stevens, 559 U.S. 460, 470 (2010); see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818 (2000) (“What the Constitution says is that” value judg- ments “are for the individual to make, not for the Gov- ernment to decree, even with the mandate or approval of a majority”). Third, our established First Amendment analysis al- ready takes account of any “collective” interest that may justify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an im- portant or compelling governmental interest). As ex- plained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that 18 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not trun- cate this tailoring test at the outset. IV A With the significant First Amendment costs for individ- ual citizens in mind, we turn to the governmental inter- ests asserted in this case. This Court has identified only one legitimate governmental interest for restricting cam- paign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741; National Conserva- tive Political Action Comm., 470 U.S., at 496–497. We have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable govern- mental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candidates.” Bennett, 564 U. S., at ___ (slip op., at 22–23); Davis, supra, at 741–742; Buckley, supra, at 56. The First Amendment prohibits such legislative at- tempts to “fine-tun[e]” the electoral process, no matter how well intentioned. Bennett, supra, at ___ (slip op., at 21). As we framed the relevant principle in Buckley, “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” 424 U.S., at 48–49. The dissent’s suggestion that Buckley supports the opposite proposition, see post, at 6, simply ignores what Buckley actually said on the matter. See also Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 295 (1981) (“Buckley . . . made clear that contributors cannot be protected from the possibility that others will make larger contributions”). Cite as: 572 U. S. ____ (2014) 19 Opinion of ROBERTS, C. J. Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. As Buckley explained, Congress may permissibly seek to rein in “large contributions [that] are given to secure a political quid pro quo from current and potential office holders.” 424 U.S., at 26. In addition to “actual quid pro quo arrangements,” Congress may permissibly limit “the ap- pearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions” to particular candi- dates. Id., at 27; see also Citizens United, 558 U.S., at 359 (“When Buckley identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption”). Spending large sums of money in connection with elec- tions, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possi- bility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Id., at 359; see McConnell v. Federal Election Comm’n, 540 U.S. 93, 297 (2003) (KENNEDY, J., concurring in judgment in part and dissenting in part). And because the Government’s interest in preventing the appearance of corruption is equally confined to the ap- pearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. See Citizens United, 558 U.S., at 360. The dissent advocates a broader conception of corrup- tion, and would apply the label to any individual contribu- tions above limits deemed necessary to protect “collective speech.” Thus, under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candidates but somehow corrupt to give the same amount to a tenth. 20 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. It is fair to say, as Justice Stevens has, “that we have not always spoken about corruption in a clear or con- sistent voice.” Id., at 447 (opinion concurring in part and dissenting in part). The definition of corruption that we apply today, however, has firm roots in Buckley itself. The Court in that case upheld base contribution limits because they targeted “the danger of actual quid pro quo arrange- ments” and “the impact of the appearance of corruption stemming from public awareness” of such a system of unchecked direct contributions. 424 U.S., at 27. Buckley simultaneously rejected limits on spending that was less likely to “be given as a quid pro quo for improper commit- ments from the candidate.” Id., at 47. In any event, this case is not the first in which the debate over the proper breadth of the Government’s anticorruption interest has been engaged. Compare Citizens United, 558 U.S., at 356–361 (majority opinion), with id., at 447–460 (opinion of Stevens, J.). The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights. In addition, “[i]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U.S. 449, 457 (2007) (opinion of ROBERTS, C. J.). The dissent laments that our opinion leaves only rem- nants of FECA and BCRA that are inadequate to combat corruption. See post, at 2. Such rhetoric ignores the fact that we leave the base limits undisturbed.6 Those base —————— 6 The fact that this opinion does not address the base limits also be- lies the dissent’s concern that we have silently overruled the Court’s holding in McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). See post, at 12–13. At issue in McConnell was BCRA’s extension of the base limits to so-called “soft money”—previously unregulated contribu- tions to national party committees. See 540 U.S., at 142; see also post, Cite as: 572 U. S. ____ (2014) 21 Opinion of ROBERTS, C. J. limits remain the primary means of regulating campaign contributions—the obvious explanation for why the aggre- gate limits received a scant few sentences of attention in Buckley.7 B “When the Government restricts speech, the Govern- ment bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group, Inc., 529 U.S., at 816. Here, the Government seeks to carry that burden by arguing that the aggregate limits further the permissible objective of preventing quid pro quo corruption. The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount. But Congress’s selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cog- nizable risk of corruption. If there is no corruption con- cern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be re- garded as corruptible if given $1,801, and all others cor- —————— at 31–38 (appendix A to opinion of BREYER, J.) (excerpts from McConnell record discussing unregulated “soft money”). Our holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about “soft money.” 7 It would be especially odd to regard aggregate limits as essential to enforce base limits when state campaign finance schemes typically include base limits but not aggregate limits. Just eight of the 38 States that have imposed base limits on contributions from individuals to candidates have also imposed aggregate limits (excluding restrictions on a specific subset of donors). See Conn. Gen. Stat. §9–611(c) (2013); Me. Rev. Stat. Ann., Tit. 21–A, §1015(3) (Supp. 2013); Md. Elec. Law Code Ann. §13–226(b) (Lexis Supp. 2013); Mass. Gen. Laws, ch. 55, §7A(a)(5) (West 2012); N. Y. Elec. Law Ann. §14–114(8) (West Supp. 2013); R. I. Gen. Laws §17–25–10.1(a)(1) (Lexis 2013); Wis. Stat. §11.26(4) (2007–2008); Wyo. Stat. Ann. §22–25–102(c)(ii) (2013). The Government presents no evidence concerning the circumvention of base limits from the 30 States with base limits but no aggregate limits. 22 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. ruptible if given a dime. And if there is no risk that addi- tional candidates will be corrupted by donations of up to $5,200, then the Government must defend the aggregate limits by demonstrating that they prevent circumvention of the base limits. The problem is that they do not serve that function in any meaningful way. In light of the various statutes and regulations currently in effect, Buckley’s fear that an individual might “contribute massive amounts of money to a particular candidate through the use of unearmarked contributions” to entities likely to support the candi- date, 424 U.S., at 38, is far too speculative. And— importantly—we “have never accepted mere conjecture as adequate to carry a First Amendment burden.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000). As an initial matter, there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candidate, as when a donor contributes to a candidate directly. When an indi- vidual contributes to a candidate, a party committee, or a PAC, the individual must by law cede control over the funds. See 2 U.S. C. §441a(a)(8); 11 CFR §110.6. The Government admits that if the funds are subsequently re- routed to a particular candidate, such action occurs at the initial recipient’s discretion—not the donor’s. See Brief for Appellee 37. As a consequence, the chain of attribution grows longer, and any credit must be shared among the various actors along the way. For those reasons, the risk of quid pro quo corruption is generally applicable only to “the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder.” McConnell, 540 U.S., at 310 (opinion of KENNEDY, J.). Buckley nonetheless focused on the possibility that “unearmarked contributions” could eventually find their way to a candidate’s coffers. 424 U.S., at 38. Even ac- Cite as: 572 U. S. ____ (2014) 23 Opinion of ROBERTS, C. J. cepting the validity of Buckley’s circumvention theory, it is hard to see how a candidate today could receive a “massive amount[ ] of money” that could be traced back to a particu- lar contributor uninhibited by the aggregate limits. Ibid. The Government offers a series of scenarios in support of that possibility. But each is sufficiently implausible that the Government has not carried its burden of demonstrat- ing that the aggregate limits further its anticircumvention interest. The primary example of circumvention, in one form or another, envisions an individual donor who contributes the maximum amount under the base limits to a particu- lar candidate, say, Representative Smith. Then the donor also channels “massive amounts of money” to Smith through a series of contributions to PACs that have stated their intention to support Smith. See, e.g., Brief for Appel- lee 35–37; Tr. of Oral Arg. 4, 6. Various earmarking and antiproliferation rules disarm this example. Importantly, the donor may not contribute to the most obvious PACs: those that support only Smith. See 11 CFR §110.1(h)(1); see also §102.14(a). Nor may the donor contribute to the slightly less obvious PACs that he knows will route “a substantial portion” of his contribution to Smith. §110.1(h)(2). The donor must instead turn to other PACs that are likely to give to Smith. When he does so, however, he discovers that his contribution will be significantly diluted by all the contributions from others to the same PACs. After all, the donor cannot give more than $5,000 to a PAC and so cannot dominate the PAC’s total receipts, as he could when Buckley was decided. 2 U.S. C. §441a(a)(1)(C). He cannot retain control over his contribution, 11 CFR §110.1(h)(3), direct his money “in any way” to Smith, 2 U.S. C. §441a(a)(8), or even imply that he would like his money to be recontributed to Smith, 11 CFR §110.6(b)(1). His salience as a Smith supporter has been 24 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. diminished, and with it the potential for corruption. It is not clear how many candidates a PAC must support before our dedicated donor can avoid being tagged with the impermissible knowledge that “a substantial portion” of his contribution will go to Smith. But imagine that the donor is one of ten equal donors to a PAC that gives the highest possible contribution to Smith.8 The PAC may give no more than $2,600 per election to Smith. Of that sum, just $260 will be attributable to the donor intent on circumventing the base limits. Thus far he has hardly succeeded in funneling “massive amounts of money” to Smith. Buckley, supra, at 38. But what if this donor does the same thing via, say, 100 different PACs? His $260 contribution will balloon to $26,000, ten times what he may contribute directly to Smith in any given election. This 100-PAC scenario is highly implausible. In the first instance, it is not true that the individual donor will necessarily have access to a sufficient number of PACs to effectuate such a scheme. There are many PACs, but they are not limitless. For the 2012 election cycle, the FEC reported about 2,700 nonconnected PACs (excluding PACs that finance independent expenditures only). And not every PAC that supports Smith will work in this scheme: For our donor’s pro rata share of a PAC’s contribution to Smith to remain meaningful, the PAC must be funded by only a small handful of donors. The antiproliferation rules, which were not in effect when Buckley was decided, prohibit our donor from creating 100 pro-Smith PACs of his own, or collaborating with the nine other donors to do —————— 8 Even those premises are generous because they assume that the donor contributes to non-multicandidate PACs, which are relatively rare. Multicandidate PACs, by contrast, must have more than 50 contributors. 11 CFR §100.5(e)(3). The more contributors, of course, the more the donor’s share in any eventual contribution to Smith is diluted. Cite as: 572 U. S. ____ (2014) 25 Opinion of ROBERTS, C. J. so. See 2 U.S. C. §441a(a)(5) (“all contributions made by political committees established or financed or maintained or controlled by . . . any other person, or by any group of such persons, shall be considered to have been made by a single political committee”). Moreover, if 100 PACs were to contribute to Smith and few other candidates, and if specific individuals like our ardent Smith supporter were to contribute to each, the FEC could weigh those “circumstantial factors” to deter- mine whether to deem the PACs affiliated. 11 CFR §100.5(g)(4)(ii). The FEC’s analysis could take account of a “common or overlapping membership” and “similar patterns of contributions or contributors,” among other considerations. §§100.5(g)(4)(ii)(D), (J). The FEC has in the past initiated enforcement proceedings against con- tributors with such suspicious patterns of PAC donations. See, e.g., Conciliation Agreement, In re Riley, Matters Under Review 4568, 4633, 4634, 4736 (FEC, Dec. 19, 2001). On a more basic level, it is hard to believe that a rational actor would engage in such machinations. In the example described, a dedicated donor spent $500,000—donating the full $5,000 to 100 different PACs—to add just $26,000 to Smith’s campaign coffers. That same donor, mean- while, could have spent unlimited funds on independent expenditures on behalf of Smith. See Buckley, 424 U.S., at 44–51. Indeed, he could have spent his entire $500,000 advocating for Smith, without the risk that his selected PACs would choose not to give to Smith, or that he would have to share credit with other contributors to the PACs. We have said in the context of independent expenditures that “ ‘[t]he absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . un- dermines the value of the expenditure to the candidate.’ ” Citizens United, 558 U.S., at 357 (quoting Buckley, supra, at 47). But probably not by 95 percent. And at least from 26 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. the donor’s point of view, it strikes us as far more likely that he will want to see his full $500,000 spent on behalf of his favored candidate—even if it must be spent inde- pendently—rather than see it diluted to a small fraction so that it can be contributed directly by someone else.9 Another circumvention example is the one that appar- ently motivated the District Court. As the District Court crafted the example, a donor gives a $500,000 check to a joint fundraising committee composed of a candidate, a national party committee, and “most of the party’s state party committees” (actually, 47 of the 50). 893 F. Supp. 2d, at 140. The committees divide up the money so that each one receives the maximum contribution permissible under the base limits, but then each transfers its allocated portion to the same single committee. That committee uses the money for coordinated expenditures on behalf of a particular candidate. If that scenario “seem[s] unlikely,” the District Court thought so, too. Ibid. But because the District Court could “imagine” that chain of events, it held that the example substantiated the Government’s circum- vention concerns. Ibid. One problem, however, is that the District Court’s spec- ulation relies on illegal earmarking. Lest there be any confusion, a joint fundraising committee is simply a mech- anism for individual committees to raise funds collectively, not to circumvent base limits or earmarking rules. See 11 —————— 9 The Justice Department agrees. As Acting Assistant Attorney Gen- eral Mythili Raman recently testified before Congress: “We anticipate seeing fewer cases of conduit contributions directly to campaign com- mittees or parties, because individuals or corporations who wish to influence elections or officials will no longer need to attempt to do so through conduit contribution schemes that can be criminally prosecut- ed. Instead, they are likely to simply make unlimited contributions to Super PACs or 501(c)s.” Hearing on Current Issues in Campaign Finance Law Enforcement before the Subcommittee on Crime and Terrorism of the Senate Committee on the Judiciary, 113th Cong., 1st Sess., 3 (2013). Cite as: 572 U. S. ____ (2014) 27 Opinion of ROBERTS, C. J. CFR §102.17(c)(5). Under no circumstances may a contri- bution to a joint fundraising committee result in an alloca- tion that exceeds the contribution limits applicable to its constituent parts; the committee is in fact required to return any excess funds to the contributor. See §102.17(c)(6)(i). The District Court assumed compliance with the specific allocation rules governing joint fundraising committees, but it expressly based its example on the premise that the donor would telegraph his desire to support one candidate and that “many separate entities would willingly serve as conduits for a single contributor’s interests.” 893 F. Supp. 2d, at 140. Regardless whether so many distinct entities would cooperate as a practical matter, the earmarking provision prohibits an individual from directing funds “through an intermediary or conduit” to a particular can- didate. 2 U.S. C. §441a(8). Even the “implicit[ ]” agree- ment imagined by the District Court, 893 F. Supp. 2d, at 140, would trigger the earmarking provision. See 11 CFR §110.6(b)(1). So this circumvention scenario could not succeed without assuming that nearly 50 separate party committees would engage in a transparent violation of the earmarking rules (and that they would not be caught if they did). Moreover, the District Court failed to acknowledge that its $500,000 example cannot apply to most candidates. It crafted the example around a presidential candidate, for whom donations in the thousands of dollars may not seem remarkable—especially in comparison to the nearly $1.4 billion spent by the 2012 presidential candidates. The same example cannot, however, be extrapolated to most House and Senate candidates. Like contributions, coordi- nated expenditures are limited by statute, with different limits based on the State and the office. See 2 U.S. C. §441a(d)(3). The 2013 coordinated expenditure limit for most House races is $46,600, well below the $500,000 in 28 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. coordinated expenditures envisioned by the District Court. The limit for Senate races varies significantly based on state population. See 78 Fed. Reg. 8531 (2013). A scheme of the magnitude imagined by the District Court would be possible even in theory for no House candidates and the Senate candidates from just the 12 most populous States. Ibid. Further, to the extent that the law does not foreclose the scenario described by the District Court, experience and common sense do. The Government provides no reason to believe that many state parties would willingly participate in a scheme to funnel money to another State’s candidates. A review of FEC data of Republican and Democratic state party committees for the 2012 election cycle reveals just 12 total instances in which a state party committee con- tributed to a House or Senate candidate in another State. No surprise there. The Iowa Democratic Party, for exam- ple, has little reason to transfer money to the California Democratic Party, especially when the Iowa Democratic Party would be barred for the remainder of the election cycle from receiving another contribution for its own activ- ities from the particular donor. These scenarios, along with others that have been sug- gested, are either illegal under current campaign finance laws or divorced from reality. The three examples posed by the dissent are no exception. The dissent does not explain how the large sums it postulates can be legally rerouted to a particular candidate, why most state com- mittees would participate in a plan to redirect their dona- tions to a candidate in another State, or how a donor or group of donors can avoid regulations prohibiting con- tributions to a committee “with the knowledge that a substantial portion” of the contribution will support a candidate to whom the donor has already contributed, 11 CFR §110.1(h)(2). The dissent argues that such knowledge may be difficult Cite as: 572 U. S. ____ (2014) 29 Opinion of ROBERTS, C. J. to prove, pointing to eight FEC cases that did not proceed because of insufficient evidence of a donor’s incriminating knowledge. See post, at 24–25. It might be that such guilty knowledge could not be shown because the donors were not guilty—a possibility that the dissent does not entertain. In any event, the donors described in those eight cases were typically alleged to have exceeded the base limits by $5,000 or less. The FEC’s failure to find the requisite knowledge in those cases hardly means that the agency will be equally powerless to prevent a scheme in which a donor routes millions of dollars in excess of the base limits to a particular candidate, as in the dissent’s “Example Two.” And if an FEC official cannot establish knowledge of circumvention (or establish affiliation) when the same ten donors contribute $10,000 each to 200 newly created PACs, and each PAC writes a $10,000 check to the same ten candidates—the dissent’s “Example Three”— then that official has not a heart but a head of stone. See post, at 19–20, 25. The dissent concludes by citing three briefs for the proposition that, even with the aggregate limits in place, individuals “have transferred large sums of money to specific candidates” in excess of the base limits. Post, at 26. But the cited sources do not provide any real-world examples of circumvention of the base limits along the lines of the various hypotheticals. The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection “because in the real world, the methods of achieving circumvention are more subtle and more complex” than the hypothetical examples. Ibid. This sort of speculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in this case. Buckley upheld aggregate limits only on the ground that they prevented channeling money to candidates beyond 30 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. the base limits. The absence of such a prospect today belies the Government’s asserted objective of preventing corruption or its appearance. The improbability of cir- cumvention indicates that the aggregate limits instead further the impermissible objective of simply limiting the amount of money in political campaigns. C Quite apart from the foregoing, the aggregate limits violate the First Amendment because they are not “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, 424 U.S., at 25. In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ . . . that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989) (quoting In re R. M. J., 455 U.S. 191, 203 (1982)). Here, because the statute is poorly tailored to the Government’s interest in preventing circumvention of the base limits, it impermissibly restricts participation in the political process. 1 The Government argues that the aggregate limits are justified because they prevent an individual from giving to too many initial recipients who might subsequently recon- tribute a donation. After all, only recontributed funds can conceivably give rise to circumvention of the base limits. Yet all indications are that many types of recipients have scant interest in regifting donations they receive. Some figures might be useful to put the risk of circum- vention in perspective. We recognize that no data can be Cite as: 572 U. S. ____ (2014) 31 Opinion of ROBERTS, C. J. marshaled to capture perfectly the counterfactual world in which aggregate limits do not exist. But, as we have noted elsewhere, we can nonetheless ask “whether experience under the present law confirms a serious threat of abuse.” Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 457 (2001). It does not. Experience suggests that the vast majority of contri- butions made in excess of the aggregate limits are likely to be retained and spent by their recipients rather than rerouted to candidates. In the 2012 election cycle, federal candidates, political parties, and PACs spent a total of $7 billion, according to the FEC. In particular, each national political party’s spending ran in the hundreds of millions of dollars. The National Republican Senatorial Committee (NRSC), Na- tional Republican Congressional Committee (NRCC), Democratic Senatorial Campaign Committee (DSCC), and Democratic Congressional Campaign Committee (DCCC), however, spent less than $1 million each on direct candi- date contributions and less than $10 million each on coor- dinated expenditures. Brief for NRSC et al. as Amici Curiae 23, 25 (NRSC Brief). Including both coordinated expenditures and direct candidate contributions, the NRSC and DSCC spent just 7% of their total funds on contributions to candidates and the NRCC and DCCC spent just 3%. Likewise, as explained previously, state parties rarely contribute to candidates in other States. In the 2012 election cycle, the Republican and Democratic state party committees in all 50 States (and the District of Columbia) contributed a paltry $17,750 to House and Senate candi- dates in other States. The state party committees spent over half a billion dollars over the same time period, of which the $17,750 in contributions to other States’ candi- dates constituted just 0.003%. As with national and state party committees, candidates 32 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. contribute only a small fraction of their campaign funds to other candidates. Authorized candidate committees may support other candidates up to a $2,000 base limit. 2 U.S. C. §432(e)(3)(B). In the 2012 election, House candi- dates spent a total of $1.1 billion. Candidate-to-candidate contributions among House candidates totaled $3.65 million, making up just 0.3% of candidates’ overall spend- ing. NRSC Brief 29. The most that any one individual candidate received from all other candidates was around $100,000. Brief for Appellee 39. The fact is that candi- dates who receive campaign contributions spend most of the money on themselves, rather than passing along dona- tions to other candidates. In this arena at least, charity begins at home.10 Based on what we can discern from experience, the indiscriminate ban on all contributions above the aggre- gate limits is disproportionate to the Government’s inter- est in preventing circumvention. The Government has not given us any reason to believe that parties or candidates would dramatically shift their priorities if the aggregate limits were lifted. Absent such a showing, we cannot conclude that the sweeping aggregate limits are appropri- ately tailored to guard against any contributions that might implicate the Government’s anticircumvention interest. A final point: It is worth keeping in mind that the base limits themselves are a prophylactic measure. As we have —————— 10 In addition, the percentage of contributions above the aggregate limits that even could be used for circumvention is limited by the fact that many of the modes of potential circumvention can be used only once each election. For example, if one donor gives $2,600 to 100 candidates with safe House seats in the hopes that each candidate will reroute $2,000 to Representative Smith, a candidate in a contested district, no other donor can do the same, because the candidates in the safe seats will have exhausted their permissible contributions to Smith. So there is no risk that the circumvention scheme will repeat itself with multiple other would-be donors to Smith. Cite as: 572 U. S. ____ (2014) 33 Opinion of ROBERTS, C. J. explained, “restrictions on direct contributions are preven- tative, because few if any contributions to candidates will involve quid pro quo arrangements.” Citizens United, 558 U.S., at 357. The aggregate limits are then layered on top, ostensibly to prevent circumvention of the base limits. This “prophylaxis-upon-prophylaxis approach” requires that we be particularly diligent in scrutinizing the law’s fit. Wisconsin Right to Life, 551 U.S., at 479 (opinion of ROBERTS, C. J.); see McConnell, 540 U.S., at 268–269 (opinion of THOMAS, J.). 2 Importantly, there are multiple alternatives available to Congress that would serve the Government’s anticircum- vention interest, while avoiding “unnecessary abridgment” of First Amendment rights. Buckley, 424 U.S., at 25. The most obvious might involve targeted restrictions on transfers among candidates and political committees. There are currently no such limits on transfers among party committees and from candidates to party commit- tees. See 2 U.S. C. §441a(a)(4); 11 CFR §113.2(c). Per- haps for that reason, a central concern of the District Court, the Government, multiple amici curiae, and the dissent has been the ability of party committees to trans- fer money freely. If Congress agrees that this is problem- atic, it might tighten its permissive transfer rules. Doing so would impose a lesser burden on First Amendment rights, as compared to aggregate limits that flatly ban contributions beyond certain levels. And while the Gov- ernment has not conceded that transfer restrictions would be a perfect substitute for the aggregate limits, it has recognized that they would mitigate the risk of circumven- tion. See Tr. of Oral Arg. 29. One possible option for restricting transfers would be to require contributions above the current aggregate limits to be deposited into segregated, nontransferable accounts 34 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. and spent only by their recipients. Such a solution would address the same circumvention possibilities as the cur- rent aggregate limits, while not completely barring contri- butions beyond the aggregate levels. In addition (or as an alternative), if Congress believes that circumvention is especially likely to occur through creation of a joint fund- raising committee, it could require that funds received through those committees be spent by their recipients (or perhaps it could simply limit the size of joint fundraising committees). Such alternatives to the aggregate limits properly refocus the inquiry on the delinquent actor: the recipient of a contribution within the base limits, who then routes the money in a manner that undermines those limits. See Citizens United, supra, at 360–361; cf. Bart- nicki v. Vopper, 532 U.S. 514, 529–530 (2001). Indeed, Congress has adopted transfer restrictions, and the Court has upheld them, in the context of state party spending. See 2 U.S. C. §441i(b). So-called “Levin funds” are donations permissible under state law that may be spent on certain federal election activity—namely, voter registration and identification, get-out-the-vote efforts, or generic campaign activities. Levin funds are raised directly by the state or local party committee that ultimately spends them. §441i(b)(2)(B)(iv). That means that other party committees may not transfer Levin funds, solicit Levin funds on behalf of the particular state or local com- mittee, or engage in joint fundraising of Levin funds. See McConnell, 540 U.S., at 171–173. McConnell upheld those transfer restrictions as “justifiable anticircumven- tion measures,” though it acknowledged that they posed some associational burdens. Id., at 171. Here, a narrow transfer restriction on contributions that could otherwise be recontributed in excess of the base limits could rely on a similar justification. Other alternatives might focus on earmarking. Many of the scenarios that the Government and the dissent hy- Cite as: 572 U. S. ____ (2014) 35 Opinion of ROBERTS, C. J. pothesize involve at least implicit agreements to circum- vent the base limits—agreements that are already prohib- ited by the earmarking rules. See 11 CFR §110.6. The FEC might strengthen those rules further by, for exam- ple, defining how many candidates a PAC must support in order to ensure that “a substantial portion” of a do- nor’s contribution is not rerouted to a certain candidate. §110.1(h)(2). Congress might also consider a modified version of the aggregate limits, such as one that prohibits donors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed. To be sure, the existing earmark- ing provision does not define “the outer limit of accept- able tailoring.” Colorado Republican Federal Campaign Comm., 533 U.S., at 462. But tighter rules could have a significant effect, especially when adopted in concert with other measures. We do not mean to opine on the validity of any particu- lar proposal. The point is that there are numerous al- ternative approaches available to Congress to prevent circumvention of the base limits. D Finally, disclosure of contributions minimizes the poten- tial for abuse of the campaign finance system. Disclosure requirements are in part “justified based on a governmen- tal interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Citizens United, 558 U.S., at 367 (quoting Buckley, supra, at 66). They may also “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Id., at 67. Disclosure requirements burden speech, but—unlike the aggregate limits—they do not impose a ceiling on speech. Citizens United, supra, at 366; but see McConnell, supra, 36 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. at 275–277 (opinion of THOMAS, J.). For that reason, disclosure often represents a less restrictive alternative to flat bans on certain types or quantities of speech. See, e.g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 262 (1986). With modern technology, disclosure now offers a partic- ularly effective means of arming the voting public with information. In 1976, the Court observed that Congress could regard disclosure as “only a partial measure.” Buck- ley, 424 U.S., at 28. That perception was understandable in a world in which information about campaign contribu- tions was filed at FEC offices and was therefore virtually inaccessible to the average member of the public. See Brief for Cause of Action Institute as Amicus Curiae 15– 16. Today, given the Internet, disclosure offers much more robust protections against corruption. See Citizens United, supra, at 370–371. Reports and databases are availa- ble on the FEC’s Web site almost immediately after they are filed, supplemented by private entities such as Open- Secrets.org and FollowTheMoney.org. Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time Buckley, or even McConnell, was decided. The existing aggregate limits may in fact encourage the movement of money away from entities subject to dis- closure. Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech. See Citizens United, supra, at 364. Indi- viduals can, for example, contribute unlimited amounts to 501(c) organizations, which are not required to publicly disclose their donors. See 26 U.S. C. §6104(d)(3). Such organizations spent some $300 million on independent expenditures in the 2012 election cycle. V At oral argument, the Government shifted its focus from Cite as: 572 U. S. ____ (2014) 37 Opinion of ROBERTS, C. J. Buckley’s anticircumvention rationale to an argument that the aggregate limits deter corruption regardless of their ability to prevent circumvention of the base limits. See Tr. of Oral Arg. 29–30, 50–52. The Government argued that there is an opportunity for corruption whenever a large check is given to a legislator, even if the check consists of contributions within the base limits to be appropriately divided among numerous candidates and committees. The aggregate limits, the argument goes, ensure that the check amount does not become too large. That new rationale for the aggregate limits—embraced by the dissent, see post, at 15–17—does not wash. It dangerously broadens the cir- cumscribed definition of quid pro quo corruption articu- lated in our prior cases, and targets as corruption the general, broad-based support of a political party. In analyzing the base limits, Buckley made clear that the risk of corruption arises when an individual makes large contributions to the candidate or officeholder him- self. See 424 U.S., at 26–27. Buckley’s analysis of the aggregate limit under FECA was similarly confined. The Court noted that the aggregate limit guarded against an individual’s funneling—through circumvention—“massive amounts of money to a particular candidate.” Id., at 38 (emphasis added). We have reiterated that understanding several times. See, e.g., National Conservative Political Action Comm., 470 U.S., at 497 (quid pro quo corruption occurs when “[e]lected officials are influenced to act con- trary to their obligations of office by the prospect of finan- cial gain to themselves or infusions of money into their campaigns” (emphasis added)); Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U.S. 290, 297 (1981) (Buckley’s holding that contribution limits are permissible “relates to the perception of undue influ- ence of large contributors to a candidate”); McConnell, 540 U.S., at 296 (opinion of KENNEDY, J.) (quid pro quo cor- ruption in Buckley involved “contributions that flowed to a 38 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. particular candidate’s benefit” (emphasis added)). Of course a candidate would be pleased with a donor who contributed not only to the candidate himself, but also to other candidates from the same party, to party commit- tees, and to PACs supporting the party. But there is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candidate—for which the candidate feels obligated—and money within the base limits given widely to a candidate’s party—for which the candidate, like all other members of the party, feels grateful. When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati- tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 214– 216 (1986). To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi- cal process. Cf. California Democratic Party v. Jones, 530 U.S. 567, 572–573 (2000) (recognizing the Government’s “role to play in structuring and monitoring the election process,” but rejecting “the proposition that party affairs are public affairs, free of First Amendment protections”). The Government suggests that it is the solicitation of large contributions that poses the danger of corruption, see Tr. of Oral Arg. 29–30, 38–39, 50–51; see also post, at 15–16, 20, but the aggregate limits are not limited to any direct solicitation by an officeholder or candidate. Cf. McConnell, supra, at 298–299, 308 (opinion of KENNEDY, J.) (rejecting a ban on “soft money” contributions to na- tional parties, but approving a ban on the solicitation of Cite as: 572 U. S. ____ (2014) 39 Opinion of ROBERTS, C. J. such contributions as “a direct and necessary regulation of federal candidates’ and officeholders’ receipt of quids”). We have no occasion to consider a law that would specifi- cally ban candidates from soliciting donations—within the base limits—that would go to many other candidates, and would add up to a large sum. For our purposes here, it is enough that the aggregate limits at issue are not directed specifically to candidate behavior. * * * For the past 40 years, our campaign finance jurispru- dence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Gov- ernment to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constitu- ents the exercise of his “mature judgment,” but judgment informed by “the strictest union, the closest correspond- ence, and the most unreserved communication with his constituents.” The Speeches of the Right Hon. Edmund Burke 129–130 (J. Burke ed. 1867). Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon- sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the 40 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in Buckley. They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.” Buckley, 424 U.S., at 14. The judgment of the District Court is reversed, and the case is remanded for further proceedings. It is so ordered. Cite as: 572 U. S. ____ (2014) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 12–536 _________________ SHAUN MCCUTCHEON, ET AL., APPELLANTS v. FEDERAL ELECTION COMMISSION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [April 2, 2014] JUSTICE THOMAS, concurring in the judgment.

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citi- zens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candi, volunteer to work on a campaign, and contribute to a candi’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Con- gress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise 2 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. Club’s Freedom Club PAC v. 564 U. S. (2011) (slip op., at –25). Many people might find those latter objectives attrac- tive: They would be delighted to see fewer television com- mercials touting a candi’s accomplishments or dispar- aging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. See ; Snyder v. Phelps, 562 U. S. (2011); National Socialist Party of America v. Skokie, 432 U.S. 43 Indeed, as we have empha- sized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit polit- ical speech. We have said that government regulation may not target the general gratitude a candi may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access are not corruption.” Citizens They embody a central feature of democracy—that constituents support candis who share their beliefs and interests, and candis who are elected can be expected to be respon- sive to those concerns. Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. See at 359. That Latin phrase captures the notion of a direct Cite as: 572 U. S. (2014) 3 Opinion of ROBERTS, C. J. exchange of an official act for money. See McCormick v. States, “The hallmark of corruption is the financial quid pro quo: dollars for po- litical favors.” Federal Election (1985). Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” at (slip op., ). And those who govern should be the last people to help decide who should govern. The statute at issue in this case imposes two types of limits on campaign The first, called base limits, restricts how much money a donor may contribute to a particular candi or committee. 2 U.S. C. The second, called aggregate limits, restricts how much money a donor may contribute in total to all candis or committees. This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption. The Gov- ernment contends that the aggregate limits also serve that objective, by preventing circumvention of the base limits. We conclude, however, that the aggregate limits do little, if anything, to address that concern, while seriously re- stricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment. I A For the 2013–2014 election cycle, the base limits in the Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), permit an individual to contribute up to $2,600 per election to a candi ($5,200 total for the primary 4 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. and general elections); $32,400 per year to a national party committee;1 $10,000 per year to a state or local party committee; and $5,000 per year to a political action com- mittee, or “PAC.” 2 U.S. C. (2013).2 A national committee, state or local party com- mittee, or multicandi PAC may in turn contribute up to $5,000 per election to a The base limits apply with equal force to contributions that are “in any way earmarked or otherwise directed through an intermediary or conduit” to a If, for example, a donor gives money to a party committee but directs the party committee to pass the contribution along to a particular candi, then the transaction is treated as a contribution from the original donor to the specified For the 2013–2014 election cycle, the aggregate limits in BCRA permit an individual to contribute a total of $48,600 to federal candis and a total of $74,600 to other politi- cal committees. Of that $74,600, only $48,600 may be contributed to state or local party committees and PACs, —————— 1 Thereare six authorized national party committees: the Republican National Committee, the Democratic National Committee, the National Republican Senatorial Committee, the Democratic Senatorial Cam- paign Committee, the National Republican Congressional Committee, and the Democratic Congressional Campaign Committee. See 2 U.S. C. 2 A PAC is a business, labor, or interest group that raises or spends money in connection with a federal election, in some cases by contrib- uting to candis. A so-called “Super PAC” is a PAC that makes only independent expenditures and cannot contribute to candis. The base and aggregate limits govern contributions to traditional PACs, but not to independent expenditure PACs. See 3 A multicandi PAC is a PAC with more than 50 contributors that has been registered for at least six months and has made contributions to five or more candis for federal office. (e)(3) (2012). PACs that do not qualify as multicandi PACs must abide by the base limit applicable to individual Cite as: 572 U. S. (2014) 5 Opinion of ROBERTS, C. J. as opposed to national party committees. All told, an individual may contribute up to $123,200 to candi and noncandi committees during each two-year election cycle. The base limits thus restrict how much money a donor may contribute to any particular candi or committee; the aggregate limits have the effect of restricting how many candis or committees the donor may support, to the extent permitted by the base limits. B In the 2011–2012 election cycle, appellant Shaun McCutcheon contributed a total of $33,088 to 16 different federal candis, in compliance with the base limits applicable to each. He alleges that he wished to contribute $1,776 to each of 12 additional candis but was pre- vented from doing so by the aggregate limit on contribu- tions to candis. McCutcheon also contributed a total of $27,328 to several noncandi political committees, in compliance with the base limits applicable to each. He alleges that he wished to contribute to various other polit- ical committees, including $25,000 to each of the three Republican national party committees, but was prevented from doing so by the aggregate limit on contributions to political committees. McCutcheon further alleges that he plans to make similar contributions in the future. In the 2013–2014 election cycle, he again wishes to contribute at least $60,000 to various candis and $75,000 to non-candi political committees. Brief for Appellant McCutcheon 11–12. Appellant Republican National Committee is a national political party committee charged with the general man- agement of the Republican Party. The RNC wishes to receive the contributions that McCutcheon and similarly situated individuals would like to make—contributions otherwise permissible under the base limits for national 6 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. party committees but foreclosed by the aggregate limit on contributions to political committees. In June 2012, McCutcheon and the RNC filed a com- plaint before a three-judge panel of the U. S. District Court for the District of Columbia. See BCRA 116 Stat. 113–114. McCutcheon and the RNC asserted that the aggregate limits on contributions to candis and to noncandi political committees were unconstitutional under the First Amendment. They moved for a prelimi- nary injunction against enforcement of the challenged provisions, and the Government moved to dismiss the case. The three-judge District Court denied appellants’ mo- tion for a preliminary injunction and granted the Govern- ment’s motion to dismiss. Assuming that the base limits appropriately served the Government’s anticorruption interest, the District Court concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits. 140 (2012). In particular, the District Court imagined a hypothetical scenario that might occur in a world without aggregate limits. A single donor might contribute the maximum amount under the base limits to nearly 50 separate com- mittees, each of which might then transfer the money to the same single committee. That committee, in turn, might use all the transferred money for coordinated expenditures on behalf of a particular candi, allowing the single donor to circumvent the base limit on the amount he may contribute to that The District Court acknowledged that “it may seem unlikely that so many separate entities would willingly serve as conduits” for the single donor’s interests, but it concluded that such a scenario “is not hard to imagine.” It thus rejected a constitutional challenge to the aggregate limits, characterizing the base limits and the aggregate Cite as: 572 U. S. (2014) 7 Opinion of ROBERTS, C. J. limits “as a coherent system rather than merely a collec- tion of individual limits stacking prophylaxis upon prophy- laxis.” McCutcheon and the RNC appealed directly to this Court, as authorized by law. 28 U.S. C. In such a case, “we ha[ve] no discretion to refuse adjudication of the case on its merits,” and accordingly we noted probable jurisdiction. 568 U. S. (2013). II A presented this Court with its first opportunity to evaluate the constitutionality of the original contribution and expenditure limits set forth in FECA. FECA imposed a $1,000 per election base limit on contributions from an individual to a federal It also imposed a $25,000 per year aggregate limit on all contributions from an individual to candis or political committees. 18 U.S. C. 608(b)(3) (1970 ed., Supp. IV). On the expenditures side, FECA imposed limits on both independent expenditures and candis’ overall campaign expenditures. 608(c). recognized that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities.” But it distinguished expenditure limits from contribution limits based on the degree to which each encroaches upon pro- tected First Amendment interests. Expenditure limits, the Court explained, “necessarily reduce[ ] the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” The Court thus subjected expendi- ture limits to “the exacting scrutiny applicable to lim- itations on core First Amendment rights of political expression.” at 44–45. Under exacting scrutiny, the 8 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. Government may regulate protected speech only if such regulation promotes a compelling interest and is the least restrictive means to further the articulated See Sable Communications of Cal., 126 By contrast, the Court concluded that contribution limits impose a lesser restraint on political speech because they “permit[ ] the symbolic expression of support evi- denced by a contribution but do[ ] not in any way infringe the contributor’s freedom to discuss candis and is- sues.” As a result, the Court focused on the effect of the contribution limits on the freedom of political association and applied a lesser but still “rigorous standard of review.” Under that standard, “[e]ven a ‘ “significant interference” with pro- tected rights of political association’ may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” ). The primary purpose of FECA was to limit quid pro quo corruption and its appearance; that purpose satisfied the requirement of a “sufficiently important” governmental 4 U.S., at As for the “closely drawn” component, concluded that the $1,000 base limit “focuses precisely on the problem of large campaign con- tributions while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candis and committees with financial resources.” at 28. The Court therefore upheld the $1,000 base limit under the “closely drawn” test. The Court next separately considered an overbreadth challenge to the base limit. See –30. The chal- lengers argued that the base limit was fatally overbroad Cite as: 572 U. S. (2014) 9 Opinion of ROBERTS, C. J. because most large donors do not seek improper influence over legislators’ actions. Although the Court accepted that premise, it nevertheless rejected the overbreadth chal- lenge for two reasons: First, it was too “difficult to isolate suspect contributions” based on a contributor’s subjective intent. Second, “Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.” Finally, in one paragraph of its 139-page opinion, the Court turned to the $25,000 aggregate limit under FECA. As a preliminary matter, it noted that the constitution- ality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” Then, in three sentences, the Court disposed of any constitutional objections to the aggregate limit that the challengers might have had: “The overall $25,000 ceiling does impose an ultimate restriction upon the number of candis and com- mittees with which an individual may associate him- self by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candi through the use of unearmarked contributions to po- litical committees likely to contribute to that candi- or huge contributions to the candi’s political party. The limited, additional restriction on associa- tional freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual con- tribution limitation that we have found to be constitu- tionally valid.” 10 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. B 1 The parties and amici curiae spend significant energy debating whether the line that drew between contributions and expenditures should remain the law. Notwithstanding the robust debate, we see no need in this case to revisit ’s distinction between contributions and expenditures and the corollary distinction in the applicable standards of review. held that the Government’s interest in preventing quid pro quo corrup- tion or its appearance was “sufficiently important,” at ; we have elsewhere stated that the same interest may properly be labeled “compelling,” see National Con- servative Political Action –, so that the interest would satisfy even strict scrutiny. More- over, regardless whether we apply strict scrutiny or Buck- ’s “closely drawn” test, we must assess the fit between the stated governmental objective and the means selected to achieve that objective. See, e.g., National Conservative Political Action at 496–501; Randall v. Sorrell, (opinion of BREYER, J.). Or to put it another way, if a law that restricts politi- cal speech does not “avoid unnecessary abridgement” of First Amendment rights, 4 U.S., it cannot survive “rigorous” review. Because we find a substantial mismatch between the Government’s stated objective and the means selected to achieve it, the aggregate limits fail even under the “closely drawn” test. We therefore need not parse the differences between the two standards in this case. 2 treated the constitutionality of the $25,000 aggregate limit as contingent upon that limit’s ability to prevent circumvention of the $1,000 base limit, describing the aggregate limit as “no more than a corollary” of the Cite as: 572 U. S. (2014) 11 Opinion of ROBERTS, C. J. base limit. The Court determined that circum- vention could occur when an individual legally contributes “massive amounts of money to a particular candi through the use of unearmarked contributions” to entities that are themselves likely to contribute to the For that reason, the Court upheld the $25,000 ag- gregate limit. Although provides some guidance, we think that its ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here. spent a total of three sentences analyzing that limit; in fact, the opinion pointed out that the consti- tutionality of the aggregate limit “ha[d] not been separately addressed at length by the parties.” We are now asked to address appellants’ direct challenge to the aggre- gate limits in place under BCRA. BCRA is a different statutory regime, and the aggregate limits it imposes operate against a distinct legal backdrop. Most notably, statutory safeguards against circumven- tion have been considerably strengthened since was decided, through both statutory additions and the introduction of a comprehensive regulatory scheme. With more targeted anticircumvention measures in place today, the indiscriminate aggregate limits under BCRA appear particularly heavy-handed. The 1976 FECA Amendments, for example, added an- other layer of base contribution limits. The 1974 version of FECA had already capped contributions from political committees to candis, but the 1976 version added limits on contributions to political committees. This change was enacted at least “in part to prevent circumven- tion of the very limitations on contributions that this Court upheld in” California Medical Assn. v. Federal Election Comm’n, (plurality opinion); see also (Blackmun, J., concurring in part and concurring in judgment). Because 12 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. a donor’s contributions to a political committee are now limited, a donor cannot flood the committee with “huge” amounts of money so that each contribution the committee makes is perceived as a contribution from him. Rather, the donor may contribute only $5,000 to the committee, which hardly raises the specter of abuse that concerned the Court in Limits on contributions to political committees consequently create an additional hurdle for a donor who seeks both to channel a large amount of money to a particular candi and to ensure that he gets the credit for doing so. The 1976 Amendments also added an antiprolifera- tion rule prohibiting donors from creating or controlling multiple affiliated political committees. See 2 U.S. C. (g)(4). The Government ac- knowledges that this antiproliferation rule “forecloses what would otherwise be a particularly easy and effective means of circumventing the limits on contributions to any particular political committee.” Brief for Appellee 46. In effect, the rule eliminates a donor’s ability to create and use his own political committees to direct funds in excess of the individual base limits. It thus blocks a straightfor- ward method of achieving the circumvention that was the underlying concern in The intricate regulatory scheme that the Federal Elec- tion Commission has enacted since further limits the opportunities for circumvention of the base limits via “unearmarked contributions to political committees likely to contribute” to a particular 4 U.S., Although the earmarking provision, 2 U.S. C. was in place when was decided, the FEC has since added regulations that define earmarking broadly. For example, the regulations construe earmarking to include any designation, “whether direct or indirect, express or implied, oral or written.” (b)(1). The regu- lations specify that an individual who has contributed to a Cite as: 572 U. S. (2014) 13 Opinion of ROBERTS, C. J. particular candi may not also contribute to a single- candi committee for that Nor may an individual who has contributed to a candi also contribute to a political committee that has supported or anticipates supporting the same candi, if the individ- ual knows that “a substantial portion [of his contribution] will be contributed to, or expended on behalf of,” that In addition to accounting for statutory and regulatory changes in the campaign finance arena, appellants’ chal- lenge raises distinct legal arguments that did not consider. For example, presumably because of its cursory treatment of the $25,000 aggregate limit, did not separately address an overbreadth challenge with respect to that provision. The Court rejected such a challenge to the base limits because of the difficulty of isolating suspect The propriety of large contributions to in- dividual candis turned on the subjective intent of donors, and the Court concluded that there was no way to tell which donors sought improper influence over legisla- tors’ actions. See 4 U.S., The aggregate limit, on the other hand, was upheld as an anticircumvention measure, without considering whether it was possible to discern which donations might be used to circumvent the base limits. See The Court never addressed overbreadth in the specific context of aggregate limits, where such an argument has far more force. Given the foregoing, this case cannot be resolved merely by pointing to three sentences in that were writ- ten without the benefit of full briefing or argument on the issue. See 139–140 (1941) (departing from “[l]oose language and a sporadic, ill-considered decision” when asked to resolve a question “with our eyes wide open and in the light of full consideration”); 251 (1998) (departing from a prior decision where it 14 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. “was rendered without full briefing or argument”). We are confronted with a different statute and different legal arguments, at a different point in the development of campaign finance regulation. Appellants’ sub- stantial First Amendment challenge to the system of aggregate limits currently in place thus merits our plenary consideration.4 III The First Amendment “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.” (1971). As relevant here, the First Amendment safe- guards an individual’s right to participate in the public debate through political expression and political associa- tion. See 4 U.S., at 15. When an individual contributes money to a candi, he exercises both of those rights: The contribution “serves as a general expres- sion of support for the candi and his views” and “serves to affiliate a person with a ” at 21–22. Those First Amendment rights are important regardless whether the individual is, on the one hand, a “lone pam- phleteer[ ] or street corner orator[ ] in the Tom Paine mold,” or is, on the other, someone who spends “substan- —————— 4 The dissent contends that we should remand for development of an evidentiary record before answering the question with which we were presented. See post, at 28–30 (opinion of BREYER, J). But the parties have treated the question as a purely legal one, and the Government has insisted that the aggregate limits can be upheld under the existing record alone. See Tr. of Oral Arg. 43, 55–56. We take the case as it comes to us. Cite as: 572 U. S. (2014) 15 Opinion of ROBERTS, C. J. tial amounts of money in order to communicate [his] polit- ical ideas through sophisticated” means. National Con- servative Political Action Either way, he is participating in an electoral debate that we have recognized is “integral to the operation of the system of government established by our Constitution.” acknowledged that aggregate limits at least diminish an individual’s right of political association. As the Court explained, the “overall $25,000 ceiling does impose an ultimate restriction upon the number of candi- s and committees with which an individual may asso- ciate himself by means of financial support.” 4 U.S., at 38. But the Court characterized that restriction as a “quite modest restraint upon protected political activity.” We cannot agree with that characterization. An aggregate limit on how many candis and committees an individual may support through contributions is not a “modest restraint” at all. The Government may no more restrict how many candis or causes a donor may support than it may tell a newspaper how many candi- s it may endorse. To put it in the simplest terms, the aggregate limits prohibit an individual from fully contributing to the pri- mary and general election campaigns of ten or more can- dis, even if all contributions fall within the base limits Congress views as adequate to protect against corruption. The individual may give up to $5,200 each to nine candi- s, but the aggregate limits constitute an outright ban on further contributions to any other candi (beyond the additional $1,800 that may be spent before reaching the $48,600 aggregate limit). At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candis he supports, and may have 16 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. to choose which of several policy concerns he will ad- vance—clear First Amendment harms that the dissent never acknowledges. It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candis or causes is to impose a special burden on broader participation in the democratic process. And as we have recently admonished, the Gov- ernment may not penalize an individual for “robustly exercis[ing]” his First Amendment rights. 554 U.S. 7, The First Amendment burden is especially great for individuals who do not have ready access to alternative avenues for supporting their preferred politicians and policies. In the context of base contribution limits, Buck- observed that a supporter could vindicate his associa- tional interests by personally volunteering his time and energy on behalf of a See 4 U.S., at 22, 28. Such personal volunteering is not a realistic alternative for those who wish to support a wide variety of candis or causes. Other effective methods of supporting preferred candis or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single even- ing. Cf.5 The dissent faults this focus on “the individual’s right to engage in political speech,” saying that it fails to take into account “the public’s interest” in “collective speech.” Post, at 6 (opinion of BREYER, J). This “collective” interest is —————— 5 See, e.g., Felsenthal, Obama Attends Fundraiser Hosted by Jay-Z, Beyonce, Reuters, Sept. 18, 2012; Coleman, Kid Rock Supports Paul Ryan at Campaign Fundraiser, Rolling Stone, Aug. 25, 2012; Mason, Robert Duvall to Host Romney Fundraiser, L. A. Times, July 25, 2012; Piazza, Hillary Lands 2.5M with Rocket Man, N. Y. Daily News, Apr. 10, 2008, p. 2. Cite as: 572 U. S. (2014) 17 Opinion of ROBERTS, C. J. said to promote “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.” Post, at 7. But there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. First, the dis- sent’s “collective speech” reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amend- ment is to afford individuals protection against such in- fringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting “collective speech.” Cf. States v. Alvarez, 567 U. S. (2012); Woo v. Maynard, ; West Virginia Bd. of Ed. v. Barnette, 319 U.S. 6 Second, the degree to which speech is protected cannot turn on a legislative or judicial determination that partic- ular speech is useful to the democratic process. The First Amendment does not contemplate such “ad hoc balancing of relative social costs and benefits.” States v. Stevens, ; see also States v. Playboy Entertainment Group, (2000) (“What the Constitution says is that” value judg- ments “are for the individual to make, not for the Gov- ernment to decree, even with the man or approval of a majority”). Third, our established First Amendment analysis al- ready takes account of any “collective” interest that may justify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an im- portant or compelling governmental interest). As ex- plained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that 18 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not trun- cate this tailoring test at the outset. IV A With the significant First Amendment costs for individ- ual citizens in mind, we turn to the governmental inter- ests asserted in this case. This Court has identified only one legitimate governmental interest for restricting cam- paign finances: preventing corruption or the appearance of corruption. See ; National Conserva- tive Political Action –. We have consistently rejected attempts to suppress campaign speech based on other legislative objectives. No matter how desirable it may seem, it is not an acceptable govern- mental objective to “level the playing field,” or to “level electoral opportunities,” or to “equaliz[e] the financial resources of candis.” 564 U. S., at (slip op., at 22–23); –742; at 56. The First Amendment prohibits such legislative at- tempts to “fine-tun[e]” the electoral process, no matter how well intentioned. at (slip op., at 21). As we framed the relevant principle in “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” 4 U.S., at 48–49. The dissent’s suggestion that supports the opposite proposition, see post, at 6, simply ignores what actually said on the matter. See also Citizens Against Rent Control/Coalition for Fair (“ made clear that contributors cannot be protected from the possibility that others will make larger contributions”). Cite as: 572 U. S. (2014) 19 Opinion of ROBERTS, C. J. Moreover, while preventing corruption or its appearance is a legitimate objective, Congress may target only a specific type of corruption—“quid pro quo” corruption. As explained, Congress may permissibly seek to rein in “large contributions [that] are given to secure a political quid pro quo from current and potential office holders.” In addition to “actual quid pro quo arrangements,” Congress may permissibly limit “the ap- pearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions” to particular candi- s. ; see also Citizens 558 U.S., at 359 (“When identified a sufficiently important governmental interest in preventing corruption or the appearance of corruption, that interest was limited to quid pro quo corruption”). Spending large sums of money in connection with elec- tions, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to such quid pro quo corruption. Nor does the possi- bility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. ; see (KENNEDY, J., concurring in judgment in part and dissenting in part). And because the Government’s interest in preventing the appearance of corruption is equally confined to the ap- pearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access. See Citizens 558 U.S., at The dissent advocates a broader conception of corrup- tion, and would apply the label to any individual contribu- tions above limits deemed necessary to protect “collective speech.” Thus, under the dissent’s view, it is perfectly fine to contribute $5,200 to nine candis but somehow corrupt to give the same amount to a tenth. 20 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. It is fair to say, as Justice Stevens has, “that we have not always spoken about corruption in a clear or con- sistent voice.” (opinion concurring in part and dissenting in part). The definition of corruption that we apply today, however, has firm roots in itself. The Court in that case upheld base contribution limits because they targeted “the danger of actual quid pro quo arrange- ments” and “the impact of the appearance of corruption stemming from public awareness” of such a system of unchecked direct 4 U.S., simultaneously rejected limits on spending that was less likely to “be given as a quid pro quo for improper commit- ments from the ” In any event, this case is not the first in which the debate over the proper breadth of the Government’s anticorruption interest has been engaged. Compare Citizens 558 U.S., at 356–361 (majority opinion), with –460 (opinion of Stevens, J.). The line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected in order to safeguard basic First Amendment rights. In addition, “[i]n drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to 551 U.S. 449, (2007) (opinion of ROBERTS, C. J.). The dissent laments that our opinion leaves only rem- nants of FECA and BCRA that are inadequate to combat corruption. See post, at 2. Such rhetoric ignores the fact that we leave the base limits undisturbed.6 Those base —————— 6 The fact that this opinion does not address the base limits also be- lies the dissent’s concern that we have silently overruled the Court’s holding in See post, at 12–13. At issue in was BCRA’s extension of the base limits to so-called “soft money”—previously unregulated contribu- tions to national party committees. See 540 U.S., 2; see also post, Cite as: 572 U. S. (2014) 21 Opinion of ROBERTS, C. J. limits remain the primary means of regulating campaign contributions—the obvious explanation for why the aggre- gate limits received a scant few sentences of attention in7 B “When the Government restricts speech, the Govern- ment bears the burden of proving the constitutionality of its actions.” States v. Playboy Entertainment Group, Here, the Government seeks to carry that burden by arguing that the aggregate limits further the permissible objective of preventing quid pro quo corruption. The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount. But Congress’s selection of a $5,200 base limit indicates its belief that contributions of that amount or less do not create a cog- nizable risk of corruption. If there is no corruption con- cern in giving nine candis up to $5,200 each, it is difficult to understand how a tenth candi can be re- garded as corruptible if given $1,801, and all others cor- —————— at 31–38 (appendix A to opinion of BREYER, J.) (excerpts from record discussing unregulated “soft money”). Our holding about the constitutionality of the aggregate limits clearly does not overrule ’s holding about “soft money.” 7 It would be especially odd to regard aggregate limits as essential to enforce base limits when state campaign finance schemes typically include base limits but not aggregate limits. Just eight of the 38 States that have imposed base limits on contributions from individuals to candis have also imposed aggregate limits (excluding restrictions on a specific subset of donors). See –611(c) (2013); Me. Rev. Stat. Ann., Tit. 21–A, (Supp. 2013); Md. Elec. Law Code Ann. (Lexis Supp. 2013); Mass. Gen. Laws, ch. 55, (West 2012); N. Y. Elec. Law Ann. (West Supp. 2013); R. I. Gen. Laws (Lexis 2013); Wis. Stat. ; –25–102(c)(ii) (2013). The Government presents no evidence concerning the circumvention of base limits from the 30 States with base limits but no aggregate limits. 22 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. ruptible if given a dime. And if there is no risk that addi- tional candis will be corrupted by donations of up to $5,200, then the Government must defend the aggregate limits by demonstrating that they prevent circumvention of the base limits. The problem is that they do not serve that function in any meaningful way. In light of the various statutes and regulations currently in effect, ’s fear that an individual might “contribute massive amounts of money to a particular candi through the use of unearmarked contributions” to entities likely to support the candi- 4 U.S., is far too speculative. And— importantly—we “have never accepted mere conjecture as adequate to carry a First Amendment burden.” Nixon v. Shrink Missouri Government PAC, (2000). As an initial matter, there is not the same risk of quid pro quo corruption or its appearance when money flows through independent actors to a candi, as when a donor contributes to a candi directly. When an indi- vidual contributes to a candi, a party committee, or a PAC, the individual must by law cede control over the funds. See 2 U.S. C. The Government admits that if the funds are subsequently re- routed to a particular candi, such action occurs at the initial recipient’s discretion—not the donor’s. See Brief for Appellee 37. As a consequence, the chain of attribution grows longer, and any credit must be shared among the various actors along the way. For those reasons, the risk of quid pro quo corruption is generally applicable only to “the narrow category of money gifts that are directed, in some manner, to a candi or officeholder.” nonetheless focused on the possibility that “unearmarked contributions” could eventually find their way to a candi’s 4 U.S., Even ac- Cite as: 572 U. S. (2014) 23 Opinion of ROBERTS, C. J. cepting the validity of ’s circumvention theory, it is hard to see how a candi today could receive a “massive amount[ ] of money” that could be traced back to a particu- lar contributor uninhibited by the aggregate limits. The Government offers a series of scenarios in support of that possibility. But each is sufficiently implausible that the Government has not carried its burden of demonstrat- ing that the aggregate limits further its anticircumvention The primary example of circumvention, in one form or another, envisions an individual donor who contributes the maximum amount under the base limits to a particu- lar candi, say, Representative Smith. Then the donor also channels “massive amounts of money” to Smith through a series of contributions to PACs that have stated their intention to support Smith. See, e.g., Brief for Appel- lee 35–37; Tr. of Oral Arg. 4, 6. Various earmarking and antiproliferation rules disarm this example. Importantly, the donor may not contribute to the most obvious PACs: those that support only Smith. See (h)(1); see also Nor may the donor contribute to the slightly less obvious PACs that he knows will route “a substantial portion” of his contribution to Smith. The donor must instead turn to other PACs that are likely to give to Smith. When he does so, however, he discovers that his contribution will be significantly diluted by all the contributions from others to the same PACs. After all, the donor cannot give more than $5,000 to a PAC and so cannot dominate the PAC’s total receipts, as he could when was decided. 2 U.S. C. He cannot retain control over his contribution, (h)(3), direct his money “in any way” to Smith, 2 U.S. C. or even imply that he would like his money to be recontributed to Smith, 11 CFR His salience as a Smith supporter has been MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. diminished, and with it the potential for corruption. It is not clear how many candis a PAC must support before our dedicated donor can avoid being tagged with the impermissible knowledge that “a substantial portion” of his contribution will go to Smith. But imagine that the donor is one of ten equal donors to a PAC that gives the highest possible contribution to Smith.8 The PAC may give no more than $2,600 per election to Smith. Of that sum, just $260 will be attributable to the donor intent on circumventing the base limits. Thus far he has hardly succeeded in funneling “massive amounts of money” to Smith. But what if this donor does the same thing via, say, 100 different PACs? His $260 contribution will balloon to $26,000, ten times what he may contribute directly to Smith in any given election. This 100-PAC scenario is highly implausible. In the first instance, it is not true that the individual donor will necessarily have access to a sufficient number of PACs to effectuate such a scheme. There are many PACs, but they are not limitless. For the 2012 election cycle, the FEC reported about 2,700 nonconnected PACs (excluding PACs that finance independent expenditures only). And not every PAC that supports Smith will work in this scheme: For our donor’s pro rata share of a PAC’s contribution to Smith to remain meaningful, the PAC must be funded by only a small handful of donors. The antiproliferation rules, which were not in effect when was decided, prohibit our donor from creating 100 pro-Smith PACs of his own, or collaborating with the nine other donors to do —————— 8 Even those premises are generous because they assume that the donor contributes to non-multicandi PACs, which are relatively rare. Multicandi PACs, by contrast, must have more than 50 contributors. (e)(3). The more contributors, of course, the more the donor’s share in any eventual contribution to Smith is diluted. Cite as: 572 U. S. (2014) 25 Opinion of ROBERTS, C. J. so. See 2 U.S. C. (“all contributions made by political committees established or financed or maintained or controlled by any other person, or by any group of such persons, shall be considered to have been made by a single political committee”). Moreover, if 100 PACs were to contribute to Smith and few other candis, and if specific individuals like our ardent Smith supporter were to contribute to each, the FEC could weigh those “circumstantial factors” to deter- mine whether to deem the PACs affiliated. 11 CFR The FEC’s analysis could take account of a “common or overlapping membership” and “similar patterns of contributions or contributors,” among other considerations. (J). The FEC has in the past initiated enforcement proceedings against con- tributors with such suspicious patterns of PAC donations. See, e.g., Conciliation Agreement, In re Ri, Matters Under Review 4568, 4633, 4634, 4736 On a more basic level, it is hard to believe that a rational actor would engage in such machinations. In the example described, a dedicated donor spent $500,000—donating the full $5,000 to 100 different PACs—to add just $26,000 to Smith’s campaign That same donor, mean- while, could have spent unlimited funds on independent expenditures on behalf of Smith. See 4 U.S., at 44–51. Indeed, he could have spent his entire $500,000 advocating for Smith, without the risk that his selected PACs would choose not to give to Smith, or that he would have to share credit with other contributors to the PACs. We have said in the context of independent expenditures that “ ‘[t]he absence of prearrangement and coordination of an expenditure with the candi or his agent un- dermines the value of the expenditure to the ’ ” Citizens (quoting ). But probably not by 95 percent. And at least from 26 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. the donor’s point of view, it strikes us as far more likely that he will want to see his full $500,000 spent on behalf of his favored candi—even if it must be spent inde- pendently—rather than see it diluted to a small fraction so that it can be contributed directly by someone else.9 Another circumvention example is the one that appar- ently motivated the District Court. As the District Court crafted the example, a donor gives a $500,000 check to a joint fundraising committee composed of a candi, a national party committee, and “most of the party’s state party committees” (actually, 47 of the 50). 893 F. Supp. 2d, 0. The committees divide up the money so that each one receives the maximum contribution permissible under the base limits, but then each transfers its allocated portion to the same single committee. That committee uses the money for coordinated expenditures on behalf of a particular If that scenario “seem[s] unlikely,” the District Court thought so, too. But because the District Court could “imagine” that chain of events, it held that the example substantiated the Government’s circum- vention concerns. One problem, however, is that the District Court’s spec- ulation relies on illegal earmarking. Lest there be any confusion, a joint fundraising committee is simply a mech- anism for individual committees to raise funds collectively, not to circumvent base limits or earmarking rules. See 11 —————— 9 The Justice Department agrees. As Acting Assistant Attorney Gen- eral Mythili Raman recently testified before Congress: “We anticipate seeing fewer cases of conduit contributions directly to campaign com- mittees or parties, because individuals or corporations who wish to influence elections or officials will no longer need to attempt to do so through conduit contribution schemes that can be criminally prosecut- ed. Instead, they are likely to simply make unlimited contributions to Super PACs or 501(c)s.” Hearing on Current Issues in Campaign Finance Law Enforcement before the Subcommittee on Crime and Terrorism of the Senate Committee on the Judiciary, 113th Cong., 1st Sess., 3 (2013). Cite as: 572 U. S. (2014) 27 Opinion of ROBERTS, C. J. CFR Under no circumstances may a contri- bution to a joint fundraising committee result in an alloca- tion that exceeds the contribution limits applicable to its constituent parts; the committee is in fact required to return any excess funds to the contributor. See The District Court assumed compliance with the specific allocation rules governing joint fundraising committees, but it expressly based its example on the premise that the donor would telegraph his desire to support one candi and that “many separate entities would willingly serve as conduits for a single contributor’s interests.” 893 F. Supp. 2d, 0. Regardless whether so many distinct entities would cooperate as a practical matter, the earmarking provision prohibits an individual from directing funds “through an intermediary or conduit” to a particular can- di. 2 U.S. C. Even the “implicit[ ]” agree- ment imagined by the District Court, 893 F. Supp. 2d, at 140, would trigger the earmarking provision. See 11 CFR So this circumvention scenario could not succeed without assuming that nearly 50 separate party committees would engage in a transparent violation of the earmarking rules (and that they would not be caught if they did). Moreover, the District Court failed to acknowledge that its $500,000 example cannot apply to most candis. It crafted the example around a presidential candi, for whom donations in the thousands of dollars may not seem remarkable—especially in comparison to the nearly $1.4 billion spent by the 2012 presidential candis. The same example cannot, however, be extrapolated to most House and Senate candis. Like contributions, coordi- nated expenditures are limited by statute, with different limits based on the State and the office. See 2 U.S. C. The 2013 coordinated expenditure limit for most House races is $46,600, well below the $500,000 in 28 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. coordinated expenditures envisioned by the District Court. The limit for Senate races varies significantly based on state population. See (2013). A scheme of the magnitude imagined by the District Court would be possible even in theory for no House candis and the Senate candis from just the 12 most populous States. Further, to the extent that the law does not foreclose the scenario described by the District Court, experience and common sense do. The Government provides no reason to believe that many state parties would willingly participate in a scheme to funnel money to another State’s candis. A review of FEC data of Republican and Democratic state party committees for the 2012 election cycle reveals just 12 total instances in which a state party committee con- tributed to a House or Senate candi in another State. No surprise there. The Iowa Democratic Party, for exam- ple, has little reason to transfer money to the California Democratic Party, especially when the Iowa Democratic Party would be barred for the remainder of the election cycle from receiving another contribution for its own activ- ities from the particular donor. These scenarios, along with others that have been sug- gested, are either illegal under current campaign finance laws or divorced from reality. The three examples posed by the dissent are no exception. The dissent does not explain how the large sums it postulates can be legally rerouted to a particular candi, why most state com- mittees would participate in a plan to redirect their dona- tions to a candi in another State, or how a donor or group of donors can avoid regulations prohibiting con- tributions to a committee “with the knowledge that a substantial portion” of the contribution will support a candi to whom the donor has already contributed, 11 CFR The dissent argues that such knowledge may be difficult Cite as: 572 U. S. (2014) 29 Opinion of ROBERTS, C. J. to prove, pointing to eight FEC cases that did not proceed because of insufficient evidence of a donor’s incriminating knowledge. See post, at –25. It might be that such guilty knowledge could not be shown because the donors were not guilty—a possibility that the dissent does not entertain. In any event, the donors described in those eight cases were typically alleged to have exceeded the base limits by $5,000 or less. The FEC’s failure to find the requisite knowledge in those cases hardly means that the agency will be equally powerless to prevent a scheme in which a donor routes millions of dollars in excess of the base limits to a particular candi, as in the dissent’s “Example Two.” And if an FEC official cannot establish knowledge of circumvention (or establish affiliation) when the same ten donors contribute $10,000 each to 200 newly created PACs, and each PAC writes a $10,000 check to the same ten candis—the dissent’s “Example Three”— then that official has not a heart but a head of stone. See post, –20, 25. The dissent concludes by citing three briefs for the proposition that, even with the aggregate limits in place, individuals “have transferred large sums of money to specific candis” in excess of the base limits. Post, at 26. But the cited sources do not provide any real-world examples of circumvention of the base limits along the lines of the various hypotheticals. The dearth of FEC prosecutions, according to the dissent, proves only that people are getting away with it. And the violations that surely must be out there elude detection “because in the real world, the methods of achieving circumvention are more subtle and more complex” than the hypothetical examples. This sort of speculation, however, cannot justify the substantial intrusion on First Amendment rights at issue in this case. upheld aggregate limits only on the ground that they prevented channeling money to candis beyond 30 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. the base limits. The absence of such a prospect today belies the Government’s asserted objective of preventing corruption or its appearance. The improbability of cir- cumvention indicates that the aggregate limits instead further the impermissible objective of simply limiting the amount of money in political campaigns. C Quite apart from the foregoing, the aggregate limits violate the First Amendment because they are not “closely drawn to avoid unnecessary abridgment of associational freedoms.” 4 U.S., In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.” Board of Trustees of State Univ. of N. 480 (quoting In re R. M. J., (1982)). Here, because the statute is poorly tailored to the Government’s interest in preventing circumvention of the base limits, it impermissibly restricts participation in the political process. 1 The Government argues that the aggregate limits are justified because they prevent an individual from giving to too many initial recipients who might subsequently recon- tribute a donation. After all, only recontributed funds can conceivably give rise to circumvention of the base limits. Yet all indications are that many types of recipients have scant interest in regifting donations they receive. Some figures might be useful to put the risk of circum- vention in perspective. We recognize that no data can be Cite as: 572 U. S. (2014) 31 Opinion of ROBERTS, C. J. marshaled to capture perfectly the counterfactual world in which aggregate limits do not exist. But, as we have noted elsewhere, we can nonetheless ask “whether experience under the present law confirms a serious threat of abuse.” Federal Election Comm’n v. Colorado Republican Federal Campaign It does not. Experience suggests that the vast majority of contri- butions made in excess of the aggregate limits are likely to be retained and spent by their recipients rather than rerouted to candis. In the 2012 election cycle, federal candis, political parties, and PACs spent a total of $7 billion, according to the FEC. In particular, each national political party’s spending ran in the hundreds of millions of dollars. The National Republican Senatorial Committee (NRSC), Na- tional Republican Congressional Committee (NRCC), Democratic Senatorial Campaign Committee (DSCC), and Democratic Congressional Campaign Committee (DCCC), however, spent less than $1 million each on direct candi- contributions and less than $10 million each on coor- dinated expenditures. Brief for NRSC et al. as Amici Curiae 23, 25 (NRSC Brief). Including both coordinated expenditures and direct candi contributions, the NRSC and DSCC spent just 7% of their total funds on contributions to candis and the NRCC and DCCC spent just 3%. Likewise, as explained previously, state parties rarely contribute to candis in other States. In the 2012 election cycle, the Republican and Democratic state party committees in all 50 States (and the District of Columbia) contributed a paltry $17,750 to House and Senate candi- s in other States. The state party committees spent over half a billion dollars over the same time period, of which the $17,750 in contributions to other States’ candi- s constituted just 0.003%. As with national and state party committees, candis 32 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. contribute only a small fraction of their campaign funds to other candis. Authorized candi committees may support other candis up to a $2,000 base limit. 2 U.S. C. In the 2012 election, House candi- s spent a total of $1.1 billion. Candi-to-candi contributions among House candis totaled $3.65 million, making up just 0.3% of candis’ overall spend- ing. NRSC Brief 29. The most that any one individual candi received from all other candis was around $100,000. Brief for Appellee 39. The fact is that candi- s who receive campaign contributions spend most of the money on themselves, rather than passing along dona- tions to other candis. In this arena at least, charity begins at home.10 Based on what we can discern from experience, the indiscriminate ban on all contributions above the aggre- gate limits is disproportionate to the Government’s inter- est in preventing circumvention. The Government has not given us any reason to believe that parties or candis would dramatically shift their priorities if the aggregate limits were lifted. Absent such a showing, we cannot conclude that the sweeping aggregate limits are appropri- ately tailored to guard against any contributions that might implicate the Government’s anticircumvention A final point: It is worth keeping in mind that the base limits themselves are a prophylactic measure. As we have —————— 10 In addition, the percentage of contributions above the aggregate limits that even could be used for circumvention is limited by the fact that many of the modes of potential circumvention can be used only once each election. For example, if one donor gives $2,600 to 100 candis with safe House seats in the hopes that each candi will reroute $2,000 to Representative Smith, a candi in a contested district, no other donor can do the same, because the candis in the safe seats will have exhausted their permissible contributions to Smith. So there is no risk that the circumvention scheme will repeat itself with multiple other would-be donors to Smith. Cite as: 572 U. S. (2014) 33 Opinion of ROBERTS, C. J. explained, “restrictions on direct contributions are preven- tative, because few if any contributions to candis will involve quid pro quo arrangements.” Citizens 558 U.S., at 357. The aggregate limits are then layered on top, ostensibly to prevent circumvention of the base limits. This “prophylaxis-upon-prophylaxis approach” requires that we be particularly diligent in scrutinizing the law’s fit. Wisconsin Right to 551 U.S., 9 (opinion of ROBERTS, C. J.); see –269 (opinion of THOMAS, J.). 2 Importantly, there are multiple alternatives available to Congress that would serve the Government’s anticircum- vention interest, while avoiding “unnecessary abridgment” of First Amendment rights. 4 U.S., The most obvious might involve targeted restrictions on transfers among candis and political committees. There are currently no such limits on transfers among party committees and from candis to party commit- tees. See 2 U.S. C. (c). Per- haps for that reason, a central concern of the District Court, the Government, multiple amici curiae, and the dissent has been the ability of party committees to trans- fer money freely. If Congress agrees that this is problem- atic, it might tighten its permissive transfer rules. Doing so would impose a lesser burden on First Amendment rights, as compared to aggregate limits that flatly ban contributions beyond certain levels. And while the Gov- ernment has not conceded that transfer restrictions would be a perfect substitute for the aggregate limits, it has recognized that they would mitigate the risk of circumven- tion. See Tr. of Oral Arg. 29. One possible option for restricting transfers would be to require contributions above the current aggregate limits to be deposited into segregated, nontransferable accounts 34 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. and spent only by their recipients. Such a solution would address the same circumvention possibilities as the cur- rent aggregate limits, while not completely barring contri- butions beyond the aggregate levels. In addition (or as an alternative), if Congress believes that circumvention is especially likely to occur through creation of a joint fund- raising committee, it could require that funds received through those committees be spent by their recipients (or perhaps it could simply limit the size of joint fundraising committees). Such alternatives to the aggregate limits properly refocus the inquiry on the delinquent actor: the recipient of a contribution within the base limits, who then routes the money in a manner that undermines those limits. See Citizens at –361; cf. Bart- Indeed, Congress has adopted transfer restrictions, and the Court has upheld them, in the context of state party spending. See 2 U.S. C. So-called “Levin funds” are donations permissible under state law that may be spent on certain federal election activity—namely, voter registration and identification, get-out-the-vote efforts, or generic campaign activities. Levin funds are raised directly by the state or local party committee that ultimately spends them. That means that other party committees may not transfer Levin funds, solicit Levin funds on behalf of the particular state or local com- mittee, or engage in joint fundraising of Levin funds. See –173. upheld those transfer restrictions as “justifiable anticircumven- tion measures,” though it acknowledged that they posed some associational burdens. Here, a narrow transfer restriction on contributions that could otherwise be recontributed in excess of the base limits could rely on a similar justification. Other alternatives might focus on earmarking. Many of the scenarios that the Government and the dissent hy- Cite as: 572 U. S. (2014) 35 Opinion of ROBERTS, C. J. pothesize involve at least implicit agreements to circum- vent the base limits—agreements that are already prohib- ited by the earmarking rules. See The FEC might strengthen those rules further by, for exam- ple, defining how many candis a PAC must support in order to ensure that “a substantial portion” of a do- nor’s contribution is not rerouted to a certain Congress might also consider a modified version of the aggregate limits, such as one that prohibits donors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candis to whom the donor has already contributed. To be sure, the existing earmark- ing provision does not define “the outer limit of accept- able tailoring.” Colorado Republican Federal Campaign But tighter rules could have a significant effect, especially when adopted in concert with other measures. We do not mean to opine on the validity of any particu- lar proposal. The point is that there are numerous al- ternative approaches available to Congress to prevent circumvention of the base limits. D Finally, disclosure of contributions minimizes the poten- tial for abuse of the campaign finance system. Disclosure requirements are in part “justified based on a governmen- tal interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.” Citizens (quoting ). They may also “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” Disclosure requirements burden speech, but—unlike the aggregate limits—they do not impose a ceiling on speech. Citizens ; but see 36 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. 5–277 (opinion of THOMAS, J.). For that reason, disclosure often represents a less restrictive alternative to flat bans on certain types or quantities of speech. See, e.g., Federal Election Comm’n v. Massachusetts Citizens for With modern technology, disclosure now offers a partic- ularly effective means of arming the voting public with information. In 1976, the Court observed that Congress could regard disclosure as “only a partial measure.” Buck- 4 U.S., at 28. That perception was understandable in a world in which information about campaign contribu- tions was filed at FEC offices and was therefore virtually inaccessible to the average member of the public. See Brief for Cause of Action Institute as Amicus Curiae 15– 16. Today, given the Internet, disclosure offers much more robust protections against corruption. See Citizens at 370–371. Reports and databases are availa- ble on the FEC’s Web site almost immediately after they are filed, supplemented by private entities such as Open- Secrets.org and FollowTheMoney.org. Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time or even was decided. The existing aggregate limits may in fact encourage the movement of money away from entities subject to dis- closure. Because individuals’ direct contributions are limited, would-be donors may turn to other avenues for political speech. See Citizens Indi- viduals can, for example, contribute unlimited amounts to 501(c) organizations, which are not required to publicly disclose their donors. See 26 U.S. C. Such organizations spent some $300 million on independent expenditures in the 2012 election cycle. V At oral argument, the Government shifted its focus from Cite as: 572 U. S. (2014) 37 Opinion of ROBERTS, C. J. ’s anticircumvention rationale to an argument that the aggregate limits deter corruption regardless of their ability to prevent circumvention of the base limits. See Tr. of Oral Arg. 29–30, 50–52. The Government argued that there is an opportunity for corruption whenever a large check is given to a legislator, even if the check consists of contributions within the base limits to be appropriately divided among numerous candis and committees. The aggregate limits, the argument goes, ensure that the check amount does not become too large. That new rationale for the aggregate limits—embraced by the dissent, see post, at 15–17—does not wash. It dangerously broadens the cir- cumscribed definition of quid pro quo corruption articu- lated in our prior cases, and targets as corruption the general, broad-based support of a political party. In analyzing the base limits, made clear that the risk of corruption arises when an individual makes large contributions to the candi or officeholder him- self. See 4 U.S., at ’s analysis of the aggregate limit under FECA was similarly confined. The Court noted that the aggregate limit guarded against an individual’s funneling—through circumvention—“massive amounts of money to a particular ” (emphasis added). We have reiterated that understanding several times. See, e.g., National Conservative Political Action U.S., at (quid pro quo corruption occurs when “[e]lected officials are influenced to act con- trary to their obligations of office by the prospect of finan- cial gain to themselves or infusions of money into their campaigns” (emphasis added)); Citizens Against Rent Control/Coalition for Fair 454 U.S. 290, (’s holding that contribution limits are permissible “relates to the perception of undue influ- ence of large contributors to a candi”); 540 U.S., 6 (quid pro quo cor- ruption in involved “contributions that flowed to a 38 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. particular candi’s benefit” (emphasis added)). Of course a candi would be pleased with a donor who contributed not only to the candi himself, but also to other candis from the same party, to party commit- tees, and to PACs supporting the party. But there is a clear, administrable line between money beyond the base limits funneled in an identifiable way to a candi—for which the candi feels obligated—and money within the base limits given widely to a candi’s party—for which the candi, like all other members of the party, feels grateful. When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude. That grati- tude stems from the basic nature of the party system, in which party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. See 214– 216 To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the politi- cal process. Cf. California Democratic Party v. Jones, 530 U.S. 567, 572–573 (2000) (recognizing the Government’s “role to play in structuring and monitoring the election process,” but rejecting “the proposition that party affairs are public affairs, free of First Amendment protections”). The Government suggests that it is the solicitation of large contributions that poses the danger of corruption, see Tr. of Oral Arg. 29–30, 38–39, 50–51; see also post, at 15–16, 20, but the aggregate limits are not limited to any direct solicitation by an officeholder or Cf. 8–299, 308 (opinion of KENNEDY, J.) (rejecting a ban on “soft money” contributions to na- tional parties, but approving a ban on the solicitation of Cite as: 572 U. S. (2014) 39 Opinion of ROBERTS, C. J. such contributions as “a direct and necessary regulation of federal candis’ and officeholders’ receipt of quids”). We have no occasion to consider a law that would specifi- cally ban candis from soliciting donations—within the base limits—that would go to many other candis, and would add up to a large sum. For our purposes here, it is enough that the aggregate limits at issue are not directed specifically to candi behavior. * * * For the past 40 years, our campaign finance jurispru- dence has focused on the need to preserve authority for the Government to combat corruption, without at the same time compromising the political responsiveness at the heart of the democratic process, or allowing the Gov- ernment to favor some participants in that process over others. As Edmund Burke explained in his famous speech to the electors of Bristol, a representative owes constitu- ents the exercise of his “mature judgment,” but judgment informed by “the strictest union, the closest correspond- ence, and the most unreserved communication with his constituents.” The Speeches of the Right Hon. Edmund Burke 129–130 (J. Burke ed. 1867). Constituents have the right to support candis who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and respon- sive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials. The Government has a strong interest, no less critical to our democratic system, in combatting corruption and its appearance. We have, however, held that this interest must be limited to a specific kind of corruption—quid pro quo corruption—in order to ensure that the Government’s efforts do not have the effect of restricting the First Amendment right of citizens to choose who shall govern them. For the reasons set forth, we conclude that the 40 MCCUTCHEON v. FEDERAL ELECTION COMM’N Opinion of ROBERTS, C. J. aggregate limits on contributions do not further the only governmental interest this Court accepted as legitimate in They instead intrude without justification on a citizen’s ability to exercise “the most fundamental First Amendment activities.” The judgment of the District Court is reversed, and the case is remanded for further proceedings. It is so ordered. Cite as: 572 U. S. (2014) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 12–536 SHAUN MCCUTCHEON, ET AL., APPELLANTS v. FEDERAL ELECTION COMMISSION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA [April 2, 2014] JUSTICE THOMAS, concurring in the judgment.

Justice Thomas

concurring

McCutcheon v. Federal Election Comm'n

2014-04-02

https://www.courtlistener.com/opinion/2659301/mccutcheon-v-federal-election-commn/

https://www.courtlistener.com/api/rest/v3/clusters/2659301/

2013-033

I adhere to the view that this Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), denigrates core First Amendment speech and should be overruled. See Randall v. Sorrell, 548 U.S. 230, 265–267 (2006) (THOMAS, J., concurring in judgment); Federal Election Comm’n v. Beaumont, 539 U.S. 146, 164–165 (2003) (THOMAS, J., dissenting); Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 465–466 (2001) (Colorado II) (THOMAS, J., dissent- ing); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 412–420 (2000) (THOMAS, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U.S. 604, 635–640 (1996) (Colorado I ) (THOMAS, J., concurring in judgment and dissenting in part). Political speech is “ ‘the primary object of First Amend- ment protection’ ” and “the lifeblood of a self-governing people.” Colorado II, supra, at 465–466 (THOMAS, J., dissenting). Contributions to political campaigns, no less than direct expenditures, “generate essential political speech” by fostering discussion of public issues and can- didate qualifications. Shrink Missouri, supra, at 412 (THOMAS, J., dissenting); see also id., at 410–411. Buckley itself recognized that both contribution and expenditure 2 MCCUTCHEON v. FEDERAL ELECTION COMM’N THOMAS, J., concurring in judgment limits “operate in an area of the most fundamental First Amendment activities” and “implicate fundamental First Amendment interests.” 424 U.S., at 14, 23. But instead of treating political giving and political spending alike, Buckley distinguished the two, embracing a bifurcated standard of review under which contribution limits receive less rigorous scrutiny. Id., at 25. As I have explained before, “[t]he analytic foundation of Buckley . . . was tenuous from the very beginning and has only continued to erode in the intervening years.” Shrink Missouri, supra, at 412 (THOMAS, J., dissenting). To justify a lesser standard of review for contribution limits, Buckley relied on the premise that contributions are dif- ferent in kind from direct expenditures. None of the Court’s bases for that premise withstands careful review. The linchpin of the Court’s analysis was its assertion that “[w]hile contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into politi- cal debate involves speech by someone other than the contributor.” 424 U.S., at 21. But that “ ‘speech by proxy’ ” rationale quickly breaks down, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message—for instance, an advertising agency or a television station.” Colorado I, supra, at 638–639 (opin- ion of THOMAS, J.). Moreover, we have since rejected the “ ‘proxy speech’ ” approach as affording insufficient First Amendment protection to “the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.” Federal Election Comm’n v. National Conservative Politi- cal Action Comm., 470 U.S. 480, 495 (1985); see Shrink Missouri, supra, at 413–414 (THOMAS, J., dissenting). The remaining justifications Buckley provided are also flawed. For example, Buckley claimed that contribution Cite as: 572 U. S. ____ (2014) 3 THOMAS, J., concurring in judgment limits entail only a “marginal” speech restriction because “[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” 424 U.S., at 20, 21. But this Court has never required a speaker to explain the reasons for his position in order to obtain full First Amendment protection. Instead, we have consistently held that speech is protected even “when the underlying basis for a position is not given.” Shrink Missouri, supra, at 415, n. 3 (THOMAS, J., dissenting); see, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 46 (1994) (sign reading “For Peace in the Gulf ”); Texas v. Johnson, 491 U.S. 397, 415– 416 (1989) (flag burning); Tinker v. Des Moines Independ- ent Community School Dist., 393 U.S. 503, 510–511 (1969) (black armband signifying opposition to Vietnam War); see also Colorado I, supra, at 640 (opinion of THOMAS, J.) (“Even a pure message of support, unadorned with reasons, is valuable to the democratic process”) Equally unpersuasive is Buckley’s suggestion that con- tribution limits warrant less stringent review because “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution,” and “[a]t most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate.” 424 U.S., at 21. Contributions do in- crease the quantity of communication by “amplifying the voice of the candidate” and “help[ing] to ensure the dis- semination of the messages that the contributor wishes to convey.” Shrink Missouri, supra, at 415 (THOMAS, J., dissenting). They also serve as a quantifiable metric of the intensity of a particular contributor’s support, as demonstrated by the frequent practice of giving different amounts to different candidates. Buckley simply failed to recognize that “we have accorded full First Amendment protection to expressions of intensity.” Id., at 415, n. 3; see also Cohen v. California, 403 U.S. 15, 25–26 (1971) 4 MCCUTCHEON v. FEDERAL ELECTION COMM’N THOMAS, J., concurring in judgment (protecting the use of an obscenity for emphasis). Although today’s decision represents a faithful applica- tion of our precedents, the plurality’s discussion of Buckley omits any reference to these discarded rationales. In- stead, the plurality alludes only to Buckley’s last remain- ing reason for devaluing political contributions relative to expenditures. See ante, at 8 (quoting Buckley, 424 U.S., at 21). The relevant sentence from Buckley reads as follows: “A limitation on the amount of money a person may give to a candidate or campaign organization thus in- volves little direct restraint on his political commu- nication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” Ibid. That proposition, read in full, cannot be squared with a key premise of today’s decision. Among the Government’s justifications for the aggregate limits set forth in the Bipartisan Campaign Reform Act of 2002 (BCRA) is that “an individual can engage in the ‘symbolic act of contributing’ to as many entities as he wishes.” Brief for Appellee 20. That is, the Government contends that aggregate limits are constitutional as long as an individual can still contribute some token amount (a dime, for example) to each of his preferred candidates. The plurality, quite correctly, rejects that argument, noting that “[i]t is no answer to say that the individual can simply contribute less money to more people.” Ante, at 16. That is so because “[t]o require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.” Ibid. What the plurality does not recognize is that the same logic also defeats the reasoning from Buckley on which the Cite as: 572 U. S. ____ (2014) 5 THOMAS, J., concurring in judgment plurality purports to rely. Under the plurality’s analysis, limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication; if it did not, the aggregate limits at issue here would not create “a special burden on broader partic- ipation in the democratic process.” Ibid. I am wholly in agreement with the plurality’s conclusion on this point: “[T]he Government may not penalize an individual for ‘robustly exercis[ing]’ his First Amendment rights.” Ibid. (quoting Davis v. Federal Election Comm’n, 554 U.S. 724, 739 (2008)). I regret only that the plurality does not acknowledge that today’s decision, although purporting not to overrule Buckley, continues to chip away at its footings. In sum, what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply “two sides of the same First Amendment coin,” and our ef- forts to distinguish the two have produced mere “word games” rather than any cognizable principle of constitu- tional law. Buckley, supra, at 241, 244 (Burger, C. J., concurring in part and dissenting in part). For that rea- son, I would overrule Buckley and subject the aggregate limits in BCRA to strict scrutiny, which they would surely fail. See Colorado I, 518 U.S., at 640–641 (opinion of THOMAS, J.) (“I am convinced that under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process . . . are unconstitutional”). This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amend- ment. Until we undertake that reexamination, we remain in a “halfway house” of our own design. Shrink Missouri, 528 U.S., at 410 (KENNEDY, J., dissenting). For these reasons, I concur only in the judgment. Cite as: 572 U. S. ____ (2014) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–536 _________________ SHAUN MCCUTCHEON, ET AL., APPELLANTS v.

adhere to the view that this Court’s decision in v. Valeo, denigrates core First Amendment speech and should be overruled. See (THOMAS, J., concurring in judgment); Federal Election ; Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 5–6 (2001) (Colorado ) (THOMAS, J., dissent- ing); Nixon v. Shrink Government PAC, 528 U.S. 377, 412–420 (2000) ; Colorado Republican Federal Campaign (THOMAS, J., concurring in judgment and dissenting in part). Political speech is “ ‘the primary object of First Amend- ment protection’ ” and “the lifeblood of a self-governing people.” Colorado at 5–6 (THOMAS, J., dissenting). Contributions to political campaigns, no less than direct expenditures, “generate essential political speech” by fostering discussion of public issues and can- didate qualifications. Shrink ; see also at 410–411. itself recognized that both contribution and expenditure 2 MCCUTCHEON v. FEDERAL ELECTON COMM’N THOMAS, J., concurring in judgment limits “operate in an area of the most fundamental First Amendment activities” and “implicate fundamental First Amendment interests.” 23. But instead of treating political giving and political spending alike, distinguished the two, embracing a bifurcated standard of review under which contribution limits receive less rigorous scrutiny. As have explained before, “[t]he analytic foundation of was tenuous from the very beginning and has only continued to erode in the intervening years.” Shrink To justify a lesser standard of review for contribution limits, relied on the premise that contributions are dif- ferent in kind from direct expenditures. None of the Court’s bases for that premise withstands careful review. The linchpin of the Court’s analysis was its assertion that “[w]hile contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into politi- cal debate involves speech by someone other than the contributor.” But that “ ‘speech by proxy’ ” rationale quickly breaks down, given that “[e]ven in the case of a direct expenditure, there is usually some go-between that facilitates the dissemination of the spender’s message—for instance, an advertising agency or a television station.” Colorado at 638–639 (opin- ion of THOMAS, J.). Moreover, we have since rejected the “ ‘proxy speech’ ” approach as affording insufficient First Amendment protection to “the voices of those of modest means as opposed to those sufficiently wealthy to be able to buy expensive media ads with their own resources.” Federal Election ; see Shrink at 413–414 The remaining justifications provided are also flawed. For example, claimed that contribution Cite as: 572 U. S. (2014) 3 THOMAS, J., concurring in judgment limits entail only a “marginal” speech restriction because “[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” 21. But this Court has never required a speaker to explain the reasons for his position in order to obtain full First Amendment protection. nstead, we have consistently held that speech is protected even “when the underlying basis for a position is not given.” Shrink n. 3 ; see, e.g., City of (sign reading “For Peace in the Gulf ”); 415– 416 (1989) (flag burning); Tinker v. Des Moines ndepend- ent Community School Dist., 510–511 (1969) (black armband signifying opposition to Vietnam War); see also Colorado (opinion of THOMAS, J.) (“Even a pure message of support, unadorned with reasons, is valuable to the democratic process”) Equally unpersuasive is ’s suggestion that con- tribution limits warrant less stringent review because “[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution,” and “[a]t most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate.” Contributions do in- crease the quantity of communication by “amplifying the voice of the candidate” and “help[ing] to ensure the dis- semination of the messages that the contributor wishes to convey.” Shrink (THOMAS, J., dissenting). They also serve as a quantifiable metric of the intensity of a particular contributor’s support, as demonstrated by the frequent practice of giving different amounts to different candidates. simply failed to recognize that “we have accorded full First Amendment protection to expressions of intensity.” n. 3; see also 4 MCCUTCHEON v. FEDERAL ELECTON COMM’N THOMAS, J., concurring in judgment (protecting the use of an obscenity for emphasis). Although today’s decision represents a faithful applica- tion of our precedents, the plurality’s discussion of omits any reference to these discarded rationales. n- stead, the plurality alludes only to ’s last remain- ing reason for devaluing political contributions relative to expenditures. See ante, at 8 (quoting 424 U.S., at 21). The relevant sentence from reads as follows: “A limitation on the amount of money a person may give to a candidate or campaign organization thus in- volves little direct restraint on his political commu- nication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” bid. That proposition, read in full, cannot be squared with a key premise of today’s decision. Among the Government’s justifications for the aggregate limits set forth in the Bipartisan Campaign Reform Act of 2002 (BCRA) is that “an individual can engage in the ‘symbolic act of contributing’ to as many entities as he wishes.” Brief for Appellee 20. That is, the Government contends that aggregate limits are constitutional as long as an individual can still contribute some token amount (a dime, for example) to each of his preferred candidates. The plurality, quite correctly, rejects that argument, noting that “[i]t is no answer to say that the individual can simply contribute less money to more people.” Ante, at 16. That is so because “[t]o require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.” bid. What the plurality does not recognize is that the same logic also defeats the reasoning from on which the Cite as: 572 U. S. (2014) 5 THOMAS, J., concurring in judgment plurality purports to rely. Under the plurality’s analysis, limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication; if it did not, the aggregate limits at issue here would not create “a special burden on broader partic- ipation in the democratic process.” bid. am wholly in agreement with the plurality’s conclusion on this point: “[T]he Government may not penalize an individual for ‘robustly exercis[ing]’ his First Amendment rights.” bid. (quoting 739 (2008)). regret only that the plurality does not acknowledge that today’s decision, although purporting not to overrule continues to chip away at its footings. n sum, what remains of is a rule without a rationale. Contributions and expenditures are simply “two sides of the same First Amendment coin,” and our ef- forts to distinguish the two have produced mere “word games” rather than any cognizable principle of constitu- tional law. (Burger, C. J., concurring in part and dissenting in part). For that rea- son, would overrule and subject the aggregate limits in BCRA to strict scrutiny, which they would surely fail. See Colorado 518 U.S., –641 (opinion of THOMAS, J.) (“ am convinced that under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process are unconstitutional”). This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amend- ment. Until we undertake that reexamination, we remain in a “halfway house” of our own design. Shrink For these reasons, concur only in the judgment. Cite as: 572 U. S. (2014) 1 BREYER, J., dissenting SUPREME COURT OF THE UNTED STATES No. 12–536 SHAUN MCCUTCHEON, ET AL., APPELLANTS v.

Justice Breyer

dissenting

McCutcheon v. Federal Election Comm'n

2014-04-02

https://www.courtlistener.com/opinion/2659301/mccutcheon-v-federal-election-commn/

https://www.courtlistener.com/api/rest/v3/clusters/2659301/

2013-033

Nearly 40 years ago in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), this Court considered the constitu­ tionality of laws that imposed limits upon the overall amount a single person can contribute to all federal candi­ dates, political parties, and committees taken together. The Court held that those limits did not violate the Con­ stitution. Id., at 38; accord, McConnell v. Federal Election Comm’n, 540 U.S. 93, 138, n. 40, 152–153, n. 48 (2003) (citing with approval Buckley’s aggregate limits holding). The Buckley Court focused upon the same problem that concerns the Court today, and it wrote: “The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and com­ mittees with which an individual may associate him­ self by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to po­ litical committees likely to contribute to that candi­ date, or huge contributions to the candidate’s political party. The limited, additional restriction on associa­ 2 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting tional freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual con­ tribution limitation that we have found to be constitu­ tionally valid.” 424 U.S., at 38. Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of pro­ tecting the political integrity of our governmental insti- tutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citi- zens United v. Federal Election Comm’n, 558 U.S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve. I The plurality concludes that the aggregate contribution limits “ ‘unnecessar[ily] abridg[e]’ ” First Amendment rights. Ante, at 8, 30 (quoting Buckley, supra, at 25). It notes that some individuals will wish to “spen[d] ‘substan­ tial amounts of money in order to communicate [their] political ideas through sophisticated’ means.” Ante, at 14– 15 (quoting Federal Election Comm’n v. National Con- servative Political Action Comm., 470 U.S. 480, 493 (1985) (NCPAC)). Aggregate contribution ceilings limit an indi­ vidual’s ability to engage in such “broader participation in the democratic process,” while insufficiently advancing any legitimate governmental objective. Ante, at 16, 21–29. Hence, the plurality finds, they violate the Constitution. The plurality’s conclusion rests upon three separate but related claims. Each is fatally flawed. First, the plurality says that given the base limits on contributions to candi­ Cite as: 572 U. S. ____ (2014) 3 BREYER, J., dissenting dates and political committees, aggregate limits do not further any independent governmental objective worthy of protection. And that is because, given the base limits, “[s]pending large sums of money in connection with elec­ tions” does not “give rise to . . . corruption.” Ante, at 19. In making this argument, the plurality relies heavily upon a narrow definition of “corruption” that excludes efforts to obtain “ ‘influence over or access to’ elected officials or political parties. ” Ibid. (quoting Citizens United, supra, at 359); accord, ante, at 18–20, 22–29. Second, the plurality assesses the instrumental objec­ tive of the aggregate limits, namely, safeguarding the base limits. It finds that they “do not serve that function in any meaningful way.” Ante, at 22. That is because, even without the aggregate limits, the possibilities for circum­ venting the base limits are “implausible” and “divorced from reality.” Ante, at 23, 24, 28. Third, the plurality says the aggregate limits are not a “ ‘reasonable’ ” policy tool. Rather, they are “poorly tailored to the Government’s interest in preventing circumvention of the base limits.” Ante, at 30 (quoting Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989)). The plurality imagines several alternative regulations that it says might just as effectively thwart circumvention. Accordingly, it finds, the aggregate caps are out of “ ‘pro­ portion to the [anticorruption] interest served.’ ” Ante, at 30 (quoting Fox, supra, at 480). II The plurality’s first claim—that large aggregate contri­ butions do not “give rise” to “corruption”—is plausible only because the plurality defines “corruption” too narrowly. The plurality describes the constitutionally permissible objective of campaign finance regulation as follows: “Con­ gress may target only a specific type of corruption—‘quid pro quo’ corruption.” Ante, at 19. It then defines quid pro 4 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting quo corruption to mean no more than “a direct exchange of an official act for money”—an act akin to bribery. Ante, at 2–3. It adds specifically that corruption does not include efforts to “garner ‘influence over or access to’ elected offi­ cials or political parties.” Ante, at 19 (quoting Citizens United, supra, at 359). Moreover, the Government’s ef­ forts to prevent the “appearance of corruption” are “equally confined to the appearance of quid pro quo corruption,” as narrowly defined. Ante, at 19. In the plurality’s view, a federal statute could not prevent an individual from writ­ ing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.” Ante, at 37. This critically important definition of “corruption” is inconsistent with the Court’s prior case law (with the possible exception of Citizens United, as I will explain below). It is virtually impossible to reconcile with this Court’s decision in McConnell, upholding the Bipartisan Campaign Reform Act of 2002 (BCRA). And it misun- derstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation. A In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recog­ nized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself. Consider at least one reason why the First Amendment Cite as: 572 U. S. ____ (2014) 5 BREYER, J., dissenting protects political speech. Speech does not exist in a vac- uum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives. This is not a new idea. Eighty-seven years ago, Justice Brandeis wrote that the First Amendment’s protection of speech was “essential to effective democracy.” Whitney v. California, 274 U.S. 357, 377 (1927) (concurring opinion). Chief Justice Hughes reiterated the same idea shortly thereafter: “A fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” Stromberg v. Cali- fornia, 283 U.S. 359, 369 (1931) (emphasis added). In Citizens United, the Court stated that “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” 558 U.S., at 339 (emphasis added). The Framers had good reason to emphasize this same connection between political speech and governmental action. An influential 18th-century continental philoso­ pher had argued that in a representative democracy, the people lose control of their representatives between elec­ tions, during which interim periods they were “in chains.” J. Rousseau, An Inquiry Into the Nature of the Social Contract 265–266 (transl. 1791). The Framers responded to this criticism both by requir­ ing frequent elections to federal office, and by enacting a First Amendment that would facilitate a “chain of com­ munication between the people, and those, to whom they have committed the exercise of the powers of government.” J. Wilson, Commentaries on the Constitution of the United States of America 30–31 (1792). This “chain” would establish the necessary “communion of interests and sympathy of sentiments” between the people and their 6 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting representatives, so that public opinion could be channeled into effective governmental action. The Federalist No. 57, p. 386 (J. Cooke ed. 1961) (J. Madison); accord, T. Benton, 1 Abridgement of the Debates of Congress, from 1789 to 1856, p. 141 (1857) (explaining that the First Amendment will strengthen American democracy by giving “ ‘the peo­ ple’ ” a right to “ ‘publicly address their representatives,’ ” “ ‘privately advise them,’ ” or “ ‘declare their sentiments by petition to the whole body’ ” (quoting James Madison)). Accordingly, the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters. What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitution­ ally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Inso­ far as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ con­ cern that a few large donations not drown out the voices of the many. See, e.g., Buckley, 424 U.S., at 26–27. That is also why the Court has used the phrase “subver­ sion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S., at 497. See also Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 208 (1982) (the Government’s interests in preventing corruption “directly implicate the integrity of our electoral process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided: Campaign Fi­ Cite as: 572 U. S. ____ (2014) 7 BREYER, J., dissenting nance Reform and the Constitution 7–16, 80–94 (forthcom­ ing 2014) (arguing that the efficacy of American democ- racy depends on “electoral integrity” and the responsiveness of public officials to public opinion). The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to com­ municate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 390 (2000) (“[T]he cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance”). Democracy, the Court has often said, cannot work unless “the people have faith in those who govern.” United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562 (1961). The upshot is that the interests the Court has long described as preventing “corruption” or the “appearance of corruption” are more than ordinary factors to be weighed against the constitutional right to political speech. Rather, they are interests rooted in the First Amendment it- self. They are rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given that end, we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plural- ity’s limited definition of “corruption” suggests. We should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment. To say this is not to deny the potential for conflict between (1) the need to permit contributions that pay for the diffusion of ideas, and (2) the need to limit payments in order to help main­ tain the integrity of the electoral process. But that conflict takes place within, not outside, the First Amendment’s 8 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting boundaries. B Since the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond those the plurality describes, the plurality’s notion of corruption is flatly inconsistent with the basic constitutional rationale I have just described. Thus, it should surprise no one that this Court’s case law (Citizens United excepted) insists upon a considerably broader definition. In Buckley, for instance, the Court said explicitly that aggregate limits were constitutional because they helped “prevent evasion . . . [through] huge contributions to the candidate’s political party,” 424 U.S., at 26 (the contrary to what the plurality today seems to believe, see ante, at 36–39). Moreover, Buckley upheld the base limits in significant part because they helped thwart “the appear­ ance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large indi- vidual financial contributions.” 424 U.S., at 27 (emphasis added). And it said that Congress could reasonably con­ clude that criminal laws forbidding “the giving and taking of bribes” did not adequately “deal with the reality or appearance of corruption.” Id., at 28. Bribery laws, the Court recognized, address “only the most blatant and specific attempts of those with money to influence gov­ ernmental action.” Ibid. The concern with corruption extends further. Other cases put the matter yet more strongly. In Beaumont, for example, the Court found constitutional a ban on direct contributions by corporations because of the need to prevent corruption, properly “understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment.” Federal Election Comm’n v. Beaumont, 539 U.S. 146, 155–156 (2003). In Federal Cite as: 572 U. S. ____ (2014) 9 BREYER, J., dissenting Election Comm’n v. Colorado Republican Federal Cam- paign Comm., 533 U.S. 431, 441, 457–460 (2001) (Colo- rado II ), the Court upheld limits imposed upon coordinated expenditures among parties and candidates because it found they thwarted corruption and its appearance, again understood as including “undue influence” by wealthy donors. In Shrink Missouri, the Court upheld limitations imposed by the Missouri Legislature upon contributions to state political candidates, not only because of the need to prevent bribery, but also because of “the broader threat from politicians too compliant with the wishes of large contributors.” 528 U.S., at 389. C Most important, in McConnell, this Court considered the constitutionality of the Bipartisan Campaign Reform Act of 2002, an Act that set new limits on “soft money” contri­ butions to political parties. “Soft money” referred to funds that, prior to BCRA, were freely donated to parties for activities other than directly helping elect a federal candi­ date—activities such as voter registration, “get out the vote” drives, and advertising that did not expressly advo­ cate a federal candidate’s election or defeat. 540 U.S., at 122–124. BCRA imposed a new ban on soft money contri­ butions to national party committees, and greatly cur­ tailed them in respect to state and local parties. Id., at 133–134, 161–164. The Court in McConnell upheld these new contribution restrictions under the First Amendment for the very rea­ son the plurality today discounts or ignores. Namely, the Court found they thwarted a significant risk of cor­ ruption—understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives. In reaching its conclusion in McConnell, the Court relied upon a vast record compiled in the District Court. That 10 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting record consisted of over 100,000 pages of material and included testimony from more than 200 witnesses. See 251 F. Supp. 2d 176, 209 (DC 2003) (per curiam). What it showed, in detail, was the web of relationships and un- derstandings among parties, candidates, and large donors that underlies privileged access and influence. See McConnell, 540 U.S., at 146–152, 154–157, 167–171, 182– 184. The District Judges in McConnell made clear that the record did “not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money.” 251 F. Supp. 2d, at 481 (opinion of Kollar-Kotelly, J.) (emphasis added). Indeed, no one had identified a “single discrete instance of quid pro quo corruption” due to soft money. Id., at 395 (opinion of Henderson, J.). But what the record did demonstrate was that enormous soft money contributions, ranging between $1 million and $5 million among the largest donors, enabled wealthy contributors to gain disproportionate “access to federal lawmakers” and the ability to “influenc[e] legislation.” Id., at 481 (opinion of Kollar-Kotelly, J.). There was an indisputable link between generous political donations and opportunity after opportunity to make one’s case directly to a Member of Congress. Testimony by elected officials supported this conclusion. See, e.g., ibid. (“ ‘Large donors of both hard and soft money receive special treatment’ ” (Sen. Simpson)); id., at 482 (“ ‘Donations, including soft money donations to political parties, do affect how Congress operates. It’s only natural, and happens all too often, that a busy Senator with 10 minutes to spare will spend those minutes returning the call of a large soft money donor’ ” (Sen. Boren)); id., at 496 (“ ‘At a minimum, large soft money donations purchase an opportunity for the donors to make their case to elected officials . . .’ ” (Sen. McCain)). Furthermore, testimony from party operatives showed that national political par­ ties had created “major donor programs,” through which Cite as: 572 U. S. ____ (2014) 11 BREYER, J., dissenting they openly “offer[ed] greater access to federal office hold­ ers as the donations gr[e]w larger.” Id., at 502. I have placed in Appendix A more examples of the kind of evi­ dence that filled the District Court record in McConnell. This Court upheld BCRA’s limitations on soft money contributions by relying on just the kind of evidence I have described. We wrote: “The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of of­ ficeholders . . . . Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] . . . , Congress has not shown that there exists real or apparent corruption. . . . [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­ lished that Congress’ legitimate interest extends be­ yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ ment, and the appearance of such influence.’ ” 540 U.S., at 146, 149–150 (quoting Colorado II, 533 U.S., at 441; emphasis added; paragraphs and paragraph breaks omitted). We specifically rejected efforts to define “corruption” in ways similar to those the plurality today accepts. We added: “Just as troubling to a functioning democracy as clas­ sic quid pro quo corruption is the danger that office­ holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contri­ butions valued by the officeholder.” 540 U.S., at 153. Insofar as today’s decision sets forth a significantly nar­ 12 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting rower definition of “corruption,” and hence of the public’s interest in political integrity, it is flatly inconsistent with McConnell. D One case, however, contains language that offers the plurality support. That case is Citizens United. There, as the plurality points out, ante, at 19, the Court said that “[w]hen Buckley identified a sufficiently important gov­ ernmental interest in preventing corruption or the ap­ pearance of corruption, that interest was limited to quid pro quo corruption.” 558 U.S., at 359. Further, the Court said that quid pro quo corruption does not include “influ­ ence over or access to elected officials,” because “ ‘generic favoritism or influence theory . . . is at odds with standard First Amendment analyses.’ ” Ibid. (quoting McConnell, supra, at 296 (KENNEDY, J., concurring in judgment in part and dissenting in part)). How should we treat these statements from Citizens United now? They are not essential to the Court’s holding in the case—at least insofar as it can be read to require federal law to treat corporations and trade unions like individuals when they independently pay for, e.g., televi­ sion advertising during the last 60 days of a federal elec­ tion. Citizens United, supra, at 365. Taken literally, the statements cited simply refer to and characterize still­ earlier Court cases. They do not require the more absolute reading that the plurality here gives them. More than that. Read as the plurality reads them to­ day, the statements from Citizens United about the proper contours of the corruption rationale conflict not just with language in the McConnell opinion, but with McConnell’s very holding. See supra, at 9–11. Did the Court in Citi- zens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent would have said something about it. The total silence of all opinions in Cite as: 572 U. S. ____ (2014) 13 BREYER, J., dissenting Citizens United with respect to this matter argues strongly in favor of treating the language quoted above as dic- tum, as an overstatement, or as limited to the context in which it appears. Citizens United itself contains language that supports the last mentioned reading, for it says that “[Buckley] did not extend this rationale [about the reality or appearance of corruption] to independent expenditures, and the Court does not do so here.” 558 U.S., at 357 (emphasis added). And it adds that, while “[t]he BCRA record establishes that certain donations to political par­ ties, called ‘soft money,’ were made to gain access to elected officials,” “[t]his case, however, is about independent expenditures, not soft money.” Id., at 360–361 (emphasis added). The plurality’s use of Citizens United’s narrow definition of corruption here, however, is a different matter. That use does not come accompanied with a limiting context (independent expenditures by corporations and unions) or limiting language. It applies to the whole of campaign finance regulation. And, as I have pointed out, it is flatly inconsistent with the broader definition of corruption upon which McConnell’s holding depends. So: Does the Court intend today to overrule McConnell? Or does it intend to leave McConnell and BCRA in place? The plurality says the latter. Ante, at 20–21, n. 6 (“Our holding about the constitutionality of the aggregate limits clearly does not overrule McConnell’s holding about ‘soft money’ ”). But how does the plurality explain its rejection of the broader definition of corruption, upon which McConnell’s holding depends? Compare ante, at 18–21, with McConnell, 540 U.S., at 146, 149–153. III The plurality invalidates the aggregate contribution limits for a second reason. It believes they are no longer needed to prevent contributors from circumventing federal 14 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting limits on direct contributions to individuals, political parties, and political action committees. Ante, at 22–29. Cf. Buckley, 424 U.S., at 38 (aggregate limits “prevent evasion” of base contribution limits). Other “campaign finance laws,” combined with “experience” and “common sense,” foreclose the various circumvention scenarios that the Government hypothesizes. Ante, at 28. Accordingly, the plurality concludes, the aggregate limits provide no added benefit. The plurality is wrong. Here, as in Buckley, in the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of cor­ ruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumven­ tion will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are com­ plex, but they are well known, or will become well known, to party fundraisers. I shall describe three. A Example One: Gifts for the Benefit of the Party. Cam­ paign finance law permits each individual to give $64,800 over two years to a national party committee. 2 U.S. C. §441a(a)(1)(B); 78 Fed. Reg. 8532 (2013). The two major political parties each have three national committees. Ante, at 4, n. 1. Federal law also entitles an individual to give $20,000 to a state party committee over two years. §441a(a)(1)(D). Each major political party has 50 such committees. Those individual limits mean that, in the absence of any aggregate limit, an individual could legally give to the Republican Party or to the Democratic Party about $1.2 million over two years. See Appendix B, Table 1, infra, at 39. To make it easier for contributors to give Cite as: 572 U. S. ____ (2014) 15 BREYER, J., dissenting gifts of this size, each party could create a “Joint Party Committee,” comprising all of its national and state party committees. The titular heads could be the Speaker of the House of Representatives and the Minority Leader of the House. A contributor could then write a single check to the Joint Party Committee—and its staff would divide the funds so that each constituent unit receives no more than it could obtain from the contributor directly ($64,800 for a national committee over two years, $20,000 for a state committee over the same). Before today’s decision, the total size of Rich Donor’s check to the Joint Party Commit­ tee was capped at $74,600—the aggregate limit for dona­ tions to political parties over a 2-year election cycle. See §441a(a)(3)(B); 78 Fed. Reg. 8532. After today’s decision, Rich Donor can write a single check to the Joint Party Committee in an amount of about $1.2 million. Will political parties seek these large checks? Why not? The recipient national and state committees can spend the money to buy generic party advertisements, say television commercials or bumper stickers saying “Support Republi­ cans,” “Support Democrats,” or the like. They also can transfer the money to party committees in battleground States to increase the chances of winning hotly contested seats. See §441a(a)(4) (permitting national or state po- litical committees to make unlimited “transfers” to other committees “of the same political party”). Will party officials and candidates solicit these large contributions from wealthy donors? Absolutely. Such con- tributions will help increase the party’s power, as well as the candidate’s standing among his colleagues. Will elected officials be particularly grateful to the large donor, feeling obliged to provide him special access and influence, and perhaps even a quid pro quo legislative favor? That is what we have previously believed. See McConnell, 540 U.S., at 182 (“Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of 16 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting the same corruption concerns posed by contributions made directly to the candidate or officeholder”); id., at 308 (opin­ ion of KENNEDY, J.) (“The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment”); Colorado II, 533 U.S., at 460, n. 23 (explaining how a candidate can “become a player [in his party] beyond his own race” by “directing donations to the party and making sure that the party knows who raised the money,” and that “the donor’s influence is multiplied” in such instances). And, as the statements collected in Appendix A, infra, make clear, we have believed this with good reason. Example Two: Donations to Individual Candidates (The $3.6 Million Check). The first example significantly un- derstates the problem. That is because federal election law also allows a single contributor to give $5,200 to each party candidate over a 2-year election cycle (assuming the candidate is running in both a primary and a general election). §441a(a)(1)(A); 78 Fed. Reg. 8532. There are 435 party candidates for House seats and 33 party candi­ dates for Senate seats in any given election year. That makes an additional $2.4 million in allowable contribu­ tions. Thus, without an aggregate limit, the law will permit a wealthy individual to write a check, over a 2-year election cycle, for $3.6 million—all to benefit his political party and its candidates. See Appendix B, Table 2(a), infra, at 39. To make it easier for a wealthy donor to make a contri­ bution of this size, the parties can simply enlarge the composition of the Joint Party Committee described in Example One, so that it now includes party candidates. And a party can proliferate such joint entities, perhaps calling the first the “Smith Victory Committee,” the second the “Jones Victory Committee,” and the like. See 11 CFR §102.17(c)(5) (2012). (I say “perhaps” because too trans­ parent a name might call into play certain earmarking Cite as: 572 U. S. ____ (2014) 17 BREYER, J., dissenting rules. But the Federal Election Commission’s (FEC) database of joint fundraising committees in 2012 shows similarly named entities, e.g., “Landrieu Wyden Victory Fund,” etc.). As I have just said, without any aggregate limit, the law will allow Rich Donor to write a single check to, say, the Smith Victory Committee, for up to $3.6 million. This check represents “the total amount that the contributor could contribute to all of the participants” in the Commit­ tee over a 2-year cycle. §102.17(c)(5). The Committee would operate under an agreement that provides a “for- mula for the allocation of fundraising proceeds” among its constituent units. §102.17(c)(1). And that “formula” would divide the proceeds so that no committee or can- didate receives more than it could have received from Rich Donor directly—$64,800, $20,000, or $5,200. See §102.17(c)(6). So what is wrong with that? The check is considerably larger than Example One’s check. But is there anything else wrong? The answer is yes, absolutely. The law will also permit a party and its candidates to shift most of Rich Donor’s contributions to a single candidate, say Smith. Here is how: The law permits each candidate and each party commit­ tee in the Smith Victory Committee to write Candidate Smith a check directly. For his primary and general elections combined, they can write checks of up to $4,000 (from each candidate’s authorized campaign committee) and $10,000 (from each state and national committee). 2 U.S. C. §§432(e)(3)(B), 441a(a)(2)(A); 11 CFR §110.3(b). This yields a potential $1,872,000 (from candidates) plus $530,000 (from party committees). Thus, the law permits the candidates and party entities to redirect $2.37 million of Rich Donor’s $3.6 million check to Candidate Smith. It also permits state and national committees to contribute to Smith’s general election campaign through making 18 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting coordinated expenditures—in amounts that range from $46,600 to $2.68 million for a general election (depending upon the size of Smith’s State and whether he is running for a House or Senate seat). 78 Fed. Reg. 8530–8532. See Appendix B, Table 2(b), infra, at 40. The upshot is that Candidate Smith can receive at least $2.37 million and possibly the full $3.6 million contributed by Rich Donor to the Smith Victory Committee, even though the funds must first be divided up among the constituent units before they can be rerouted to Smith. Nothing requires the Smith Victory Committee to explain in advance to Rich Donor all of the various transfers that will take place, and nothing prevents the entities in the Committee from informing the donor and the receiving candidate after the fact what has transpired. Accordingly, the money can be donated and rerouted to Candidate Smith without the donor having violated the base limits or any other FEC regulation. And the evidence in the McConnell record reprinted in Appendix A, infra—with respect to soft money contributions—makes clear that Candidate Smith will almost certainly come to learn from whom he has received this money. The parties can apply the same procedure to other large donations, channeling money from Rich Donor Two to Candidate Jones. If 10 or 20 candidates face particularly tight races, party committees and party candidates may work together to channel Rich Donor One’s multimillion dollar contribution to the Most Embattled Candidate (e.g., Candidate Smith), Rich Donor Two’s multimillion dollar contribution to the Second Most Embattled Candidate (e.g., Candidate Jones), and so on down the line. If this does not count as evasion of the base limits, what does? Present aggregate limits confine the size of any individual gift to $123,200. Today’s opinion creates a loophole meas­ ured in the millions. Example Three: Proliferating Political Action Commit- Cite as: 572 U. S. ____ (2014) 19 BREYER, J., dissenting tees (PACs). Campaign finance law prohibits an individual from contributing (1) more than $5,200 to any candidate in a federal election cycle, and (2) more than $5,000 to a PAC in a calendar year. 2 U.S. C. §§441a(a)(1)(A), (C); 78 Fed. Reg. 8532. It also prohibits (3) any PAC from contributing more than $10,000 to any candidate in an election cycle. §441(a)(2)(A). But the law does not prohibit an individual from contributing (within the current $123,200 biannual aggregate limit) $5,000 to each of an unlimited total num­ ber of PACs. And there, so to speak, lies the rub. Here is how, without any aggregate limits, a party will be able to channel $2 million from each of ten Rich Do- nors to each of ten Embattled Candidates. Groups of party supporters—individuals, corporations, or trade unions— create 200 PACs. Each PAC claims it will use the funds it raises to support several candidates from the party, though it will favor those who are most endangered. (Each PAC qualifies for “multicandidate” status because it has received contributions from more than 50 persons and has made contributions to five federal candidates at some point previously. §441a(a)(4); 11 CFR §100.5(e)(3)). Over a 2-year election cycle, Rich Donor One gives $10,000 to each PAC ($5,000 per year)—yielding $2 million total. Rich Donor 2 does the same. So, too, do the other eight Rich Donors. This brings their total donations to $20 million, disbursed among the 200 PACs. Each PAC will have collected $100,000, and each can use its money to write ten checks of $10,000—to each of the ten most Em­ battled Candidates in the party (over two years). See Appendix B, Table 3, infra, at 41. Every Embattled Can­ didate, receiving a $10,000 check from 200 PACs, will have collected $2 million. The upshot is that ten Rich Donors will have contrib- uted $2 million each, and ten Embattled Candidates will have collected $2 million each. In this example, unlike Example Two, the recipient candidates may not know 20 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting which of the ten Rich Donors is personally responsible for the $2 million he or she receives. But the recipient candi­ date is highly likely to know who the ten Rich Donors are, and to feel appropriately grateful. Moreover, the ability of a small group of donors to contribute this kind of money to threatened candidates is not insignificant. In the example above—with ten Rich Donors giving $2 million each, and ten Embattled Candidates receiving $2 million each—the contributions would have been enough to finance a consid­ erable portion of, and perhaps all of, the candidates’ races in the 2012 elections. See Appendix C, Table 1, infra, at 42 (showing that in 2012, the average winning House candidate spent $1.6 million and the average winning Senate candidate spent $11.5 million). B The plurality believes that the three scenarios I have just depicted either pose no threat, or cannot or will not take place. It does not believe the scenario depicted in Example One is any cause for concern, because it involves only “general, broad-based support of a political party.” Ante, at 37. Not so. A candidate who solicits a multimil­ lion dollar check for his party will be deeply grateful to the checkwriter, and surely could reward him with a quid pro quo favor. The plurality discounts the scenarios depicted in Example Two and Example Three because it finds such circumvention tactics “illegal under current campaign finance laws,” “implausible,” or “divorced from reality.” Ante, at 23, 24, 28. But they are not. The plurality’s view depends in large part upon its claim that since this Court decided Buckley in 1976, changes in either statutory law or in applicable regulations have come to make it difficult, if not impossible, for these cir­ cumvention scenarios to arise. Hence, it concludes, there is no longer a need for aggregate contribution limits. See ante, at 11–13, 22–29. But a closer examination of the five Cite as: 572 U. S. ____ (2014) 21 BREYER, J., dissenting legal changes to which the plurality points makes clear that those changes cannot effectively stop the abuses that I have depicted. First, the plurality points out that in 1976 (a few months after this Court decided Buckley) Congress “added limits on contributions to political committees,” i.e., to PACs. Ante, at 11; accord, 90 Stat. 487 (codified at 2 U.S. C. §441a(a)(1)(C)). But Example Three, the here­ relevant example, takes account of those limits, namely, $5,000 to a PAC in any given year. And it shows that the per-PAC limit does not matter much when it comes to the potential for circumvention, as long as party supporters can create dozens or hundreds of PACs. Federal law places no upper limit on the number of PACs supporting a party or a group of party candidates that can be estab­ lished. And creating a PAC is primarily a matter of pa­ perwork, a knowledgeable staff person, and a little time. Second, the plurality points out that in 1976, Congress “also added an antiproliferation rule prohibiting donors from creating or controlling multiple affiliated political committees.” Ante, at 12. The rule provides that “all contributions made by political committees established or financed or maintained or controlled” by the same corpora­ tion, labor organization, person, or group of persons, “shall be considered to have been made by a single political committee.” §441a(a)(5). But different supporters can create different PACs. Indeed, there were roughly 2,700 “nonconnected” PACs (i.e., PACs not connected to a spe- cific corporation or labor union) operating during the 2012 elections. Ante, at 24. In a future without aggregate contribution limits, far more nonconnected PACs will likely appear. The plurality also notes that the FEC can examine certain “ ‘circumstantial factors,’ ” such as “ ‘com­ mon or overlapping membership’ ” or “ ‘similar patterns of contributions,’ ” to determine whether a group of PACs are affiliated. Ante, at 25 (quoting 11 CFR §100.5(g)(4)(ii)). 22 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting But the ultimate question in the affiliation inquiry is whether “one committee or organization [has] been estab­ lished, financed, maintain or controlled by another com­ mittee or sponsoring organization.” Ibid. Just because a group of multicandidate PACs all support the same party and all decide to donate funds to a group of endangered candidates in that party does not mean they will qualify as “affiliated” under the relevant definition. This rule appears inadequate to stop the sort of circumvention depicted in Example Three. Third, the plurality says that a post-Buckley regulation has strengthened the statute’s earmarking provision. Ante, at 12. Namely, the plurality points to a rule pro- mulgated by the FEC in 1976, specifying that earmarking includes any “designation ‘whether direct or indirect, express or implied, oral or written.’ ” Ibid. (quoting 11 CFR §110.6(b)); accord, 41 Fed. Reg. 35950 (1976). This means that if Rich Donor were to give $5,000 to a PAC while “designat[ing]” (in any way) that the money go to Candidate Smith, those funds must count towards Rich Donor’s total allowable contributions to Smith—$5,200 per election cycle. But the virtually identical earmarking provision in effect when this Court decided Buckley would have required the same thing. That provision also counted, when applying the base contribution limits, “all contri- butions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to a candidate.” 88 Stat. 1264; accord, 2 U.S. C. §441a(a)(8) (same). What is the difference? Fourth, the plurality points out that the FEC’s regula­ tions “specify that an individual who has contributed to a particular candidate committee may not also contribute to a single-candidate committee for that candidate.” Ante, at 12–13 (citing 11 CFR §110.1(h)(1); emphasis added). The Cite as: 572 U. S. ____ (2014) 23 BREYER, J., dissenting regulations, however, do not prevent a person who has contributed to a candidate from also contributing to multi- candidate committees that support the candidate. Indeed, the rules specifically authorize such contributions. See §110.1(h) (“A person may contribute to a candidate . . . and also contribute to a political committee which has sup- ported, or anticipates supporting, the same candidate in the same election,” as long as the political committee is “not the candidate’s principal campaign committee” or a “single candidate committee” (emphasis added)). Example Three illustrates the latter kind of contribution. And briefs before us make clear that the possibility for circumventing the base limits through making such contributions is a realistic, not an illusory, one. See Brief for Appellee 36 (demonstrating that many PACs today explain in their public materials just what fairly small group of candidates they intend to support); Brief for Americans for Campaign Reform as Amicus Curiae 14–15 (similar). Fifth, the plurality points to another FEC regulation (also added in 1976), which says that “an individual who has contributed to a candidate” may not “also contribute to a political committee that has supported or anticipates supporting the same candidate if the individual knows that ‘a substantial portion [of his contribution] will be contributed to, or expended on behalf of,’ that candidate.” Ante, at 13 (quoting 11 CFR §110.1(h)(2); brackets in original); accord, 41 Fed. Reg. 35948. This regulation is important, for in principle, the FEC might use it to pre­ vent the circumstances that Examples Two and Three set forth from arising. And it is not surprising that the plu­ rality relies upon the existence of this rule when it de­ scribes those circumstances as “implausible,” “illegal,” or “divorced from reality.” Ante, at 23, 24, 28. In fact, however, this regulation is not the strong anti­ circumvention weapon that the plurality imagines. De­ spite the plurality’s assurances, it does not “disarm” the 24 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting possibilities for circumvention. Ante, at 23. That is be­ cause the regulation requires a showing that donors have “knowledge that a substantial portion” of their contribu­ tions will be used by a PAC to support a candidate to whom they have already contributed. §110.1(h)(2) (em­ phasis added). And “knowledge” is hard to prove. I have found nine FEC cases decided since the year 2000 that refer to this regulation. In all but one, the FEC failed to find the requisite “knowledge”—despite the presence of Example Two or Example Three circumstances. See Fac­ tual and Legal Analysis, In re: Transfund PAC, Matter Under Review (MUR) 6221, p. 11 (FEC, June 7, 2010) (although the donor “might reasonably infer that some portion of his contribution” to a candidate’s Leadership PAC would be used to support the candidate, “such an inference alone does not suggest that [he] had ‘actual knowledge’ ” of such); Factual and Legal Analysis, In re: John Shadegg’s Friends, MUR 5968, pp. 3, 6–7 (FEC, Nov. 10, 2008) (“[T]here is no basis on which to conclude that [the donors] knew that the funds they contributed to LEAD PAC would be used to support the Shadegg Com­ mittee” even though Congressman Shadegg solicited the donations and LEAD PAC was Congressman Shadegg’s Leadership PAC); Factual and Legal Analysis, In re: Wal- berg for Congress, MUR 5881, pp. 6, 9–11 (FEC, Aug. 15, 2007) (finding seven contributors, who gave to a candidate and to a PAC that provided 86% of the candidate’s financ­ ing, had not shown “knowledge”); Factual and Legal Anal­ ysis, In re: Matt Brown for Senate, MUR 5732, p. 11 (FEC, Apr. 4, 2007) (“Though it may be reasonable to infer that the individual donors solicited by Brown gave to the State Parties under the assumption that some portion of their contribution might then be donated to the Brown Commit­ tee, such an inference alone is insufficient to find reason to believe 11 CFR §110.1(h) has been violated”); First Gen­ eral Counsel’s Report, In re: Liffrig for Senate, MUR 5678, Cite as: 572 U. S. ____ (2014) 25 BREYER, J., dissenting pp. 8–9 (FEC, Nov. 27, 2006) (similar); First General Counsel’s Report, In re: Nesbitt, MUR 5445, pp. 11–12 (FEC, Feb. 2, 2005) (similar); First General Counsel’s Report, In re: Keystone Corp., MUR 5019, pp. 23–29 (FEC, Feb. 5, 2001) (similar); General Counsel’s Report #2, In re: Boston Capital Corp., MUR 4538, pp. 17–18 (FEC, Mar. 10, 2000) (recommending the FEC take no action with respect to the §110.1(h) issue). Given this record of FEC (in)activity, my reaction to the plurality’s reliance upon agency enforcement of this rule (as an adequate substitute for Congress’ aggregate limits) is like Oscar Wilde’s after reading Dickens’ account of the death of Little Nell: “One must have a heart of stone,” said Wilde, “to read [it] with­ out laughing.” Oxford Dictionary of Humorous Quotations 86 (N. Sherrin 2d ed. 2001). I have found one contrary example—the single example to which the plurality refers. Ante, at 25 (citing Concilia­ tion Agreement, In re Riley, MURs 4568, 4633, 4634, 4736 (FEC, Dec. 19, 2001)). In that case, the FEC found prob­ able cause to believe that three individual contributors to several PACs had the requisite “knowledge” that the PACs would use a “substantial portion” of their contributions to support a candidate to whom they had already contributed— Sam Brownback, a candidate for the Senate (for two of the contributors), and Robert Riley, a candidate for the House (for the third). The individuals had made donations to several PACs operating as a network, under the direc­ tion of a single political consulting firm. The two contribu­ tors to Sam Brownback were his parents-in-law, and the FEC believed they might be using the PAC network to channel extra support to him. The contributor to Robert Riley was his son, and the FEC believed he might be doing the same. The facts in this case are unusual, for individ- ual contributors are not typically relatives of the candidates they are seeking to support, and ordinary PACs do not tend to work in coordination under the direction of a con­ 26 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting sulting firm. In any event, this single swallow cannot make the plurality’s summer. Thus, it is not surprising that throughout the many years this FEC regulation has been in effect, political parties and candidates have established ever more joint fundraising committees (numbering over 500 in the last federal elections); candidates have established ever more “Leadership PACs” (numbering over 450 in the last elec­ tions); and party supporters have established ever more multicandidate PACs (numbering over 3,000 in the last elections). See Appendix C, Tables 2–3, infra, at 42–43; FEC, 2014 Committee Summary (reporting the number of “qualified” (or multicandidate) PACs in 2012), online at http://www.fec.gov/data/CommitteeSummary.do (all Inter­ net materials as visited Mar. 28, 2014, and available in Clerk of Court’s case file). Using these entities, candidates, parties, and party supporters can transfer and, we are told, have transferred large sums of money to specific candidates, thereby avoid­ ing the base contribution limits in ways that Examples Two and Three help demonstrate. See Brief for Appellee 38–39, 53–54; Brief for Campaign Legal Center, et al. as Amici Curiae 12–15; Brief of Democratic Members of the United States House of Representatives as Amici Curiae 28–29. They have done so without drawing FEC prosecu­ tion—at least not according to my (and apparently the plurality’s) search of publicly available records. That is likely because in the real world, the methods of achieving circumvention are more subtle and more complex than our stylized Examples Two and Three depict. And persons have used these entities to channel money to candidates without any individual breaching the current aggregate $123,200 limit. The plurality now removes that limit, thereby permitting wealthy donors to make aggregate contributions not of $123,200, but of several millions of dollars. If the FEC regulation has failed to plug a small Cite as: 572 U. S. ____ (2014) 27 BREYER, J., dissenting hole, how can it possibly plug a large one? IV The plurality concludes that even if circumvention were a threat, the aggregate limits are “poorly tailored” to ad- dress it. Ante, at 30. The First Amendment requires “ ‘a fit that is . . . reasonable,’ ” and there is no such “fit” here because there are several alternative ways Congress could prevent evasion of the base limits. Ibid. (quoting Fox, 492 U. S., at 480). For instance, the plurality posits, Congress (or the FEC) could “tighten . . . transfer rules”; it could require “contributions above the current aggregate limits to be deposited into segregated, nontransferable accounts and spent only by their recipients”; it could define “how many candidates a PAC must support in order to ensure that ‘a substantial portion’ of a donor’s contribution is not rerouted to a certain candidate”; or it could prohibit “do­ nors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed.” Ante, at 33–35 (quoting 11 CFR §110.1(h)(2)). The plurality, however, does not show, or try to show, that these hypothetical alternatives could effectively replace aggregate contribution limits. Indeed, it does not even “opine on the validity of any particular proposal,” ante, at 35—presumably because these proposals them­ selves could be subject to constitutional challenges. For the most part, the alternatives the plurality mentions were similarly available at the time of Buckley. Their hypothetical presence did not prevent the Court from upholding aggregate limits in 1976. How can their con­ tinued hypothetical presence lead the plurality now to conclude that aggregate limits are “poorly tailored?” See ante, at 30. How can their continued hypothetical pres­ ence lead the Court to overrule Buckley now? 28 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting In sum, the explanation of why aggregate limits are needed is complicated, as is the explanation of why other methods will not work. But the conclusion is simple: There is no “substantial mismatch” between Congress’ legitimate objective and the “means selected to achieve it.” Ante, at 10. The Court, as in Buckley, should hold that aggregate contribution limits are constitutional. V The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. See 893 F. Supp. 2d 133, 140–141 (DC 2012). If the plu­ rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place? In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objec­ tive. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did. See, e.g., McConnell, 540 U.S., at 147–154 (upholding federal re­ strictions on soft money by drawing on an extensive Dis­ trict Court record that contained declarations from current and former Members of Congress); Colorado II, 533 U.S., at 457–465 (upholding federal limits on coordinated ex­ penditures between parties and candidates on the basis of a summary judgment record that contained declarations from party operatives, fundraisers, and Members of Con­ gress); Shrink Missouri, 528 U.S., at 393 (upholding Missouri’s contribution limits on the basis of the lower court record, which contained similar declarations). If we are to overturn an act of Congress here, we should do so on Cite as: 572 U. S. ____ (2014) 29 BREYER, J., dissenting the basis of a similar record. For one thing, an evidentiary record can help us deter­ mine whether or the extent to which we should defer to Congress’ own judgments, particularly those reflecting a balance of the countervailing First Amendment interests I have described. Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and ap- plying significant discretion and judgment. To what ex­ tent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it? These kinds of questions, while not easily answered, are questions that Congress is far better suited to resolve than are judges. Thus, while court review of contribution limits has been and should be “rigorous,” Buckley, 424 U.S., at 29, we have also recognized that “deference to legislative choice is warranted.” Beaumont, 539 U.S., at 155. And that deference has taken account of facts and circum­ stances set forth in an evidentiary record. For another thing, a comparison of the plurality’s opin­ ion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” Ante, at 14, n. 4. But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental inter­ 30 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting est—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy. The plurality itself spends pages citing figures about campaign spending to defend its “legal” conclusion. Ante, at 24–26, 27–28, 30–32. The problem with such reasoning is that this Court’s expertise does not lie in marshaling facts in the primary instance. That is why in the past, when answering similar questions about the constitutionality of restrictions on campaign contributions, we have relied on an extensive evidentiary record pro­ duced below to inform our decision. Without further development of the record, however, I fail to see how the plurality can now find grounds for overturning Buckley. The justification for aggregate con­ tribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. Part II, supra. The threat to that integrity posed by the risk of special access and influence remains real. Part III, supra. Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumven­ tion. Ibid. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits. Part IV, supra. The plurality reaches the opposite conclusion. The re­ sult, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opin­ ion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform. With respect, I dissent. Cite as: 572 U. S. ____ (2014) 31 Appendix A to ,opinion of BREYER, J. BREYER J., dissenting

Nearly 40 years ago in (1976) this Court considered the constitu­ tionality of laws that imposed limits upon the overall amount a single person can contribute to all federal candi­ dates, political parties, and committees taken together. The Court held that those limits did not violate the Con­ stitution. ; accord, (citing with approval ’s aggregate limits holding). The Court focused upon the same problem that concerns the Court today, and it wrote: “The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and com­ mittees with which an individual may associate him­ self by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to po­ litical committees likely to contribute to that candi­ date, or huge contributions to the candidate’s political party. The limited, additional restriction on associa­ 2 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting tional freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual con­ tribution limitation that we have found to be constitu­ tionally valid.” 424 U.S., Today a majority of the Court overrules this holding. It is wrong to do so. Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of pro­ tecting the political integrity of our governmental insti- tutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign. Taken together with Citi- zens (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve. I The plurality concludes that the aggregate contribution limits “ ‘unnecessar[ily] abridg[e]’ ” First Amendment rights. Ante, at 8, 30 (quoting ). It notes that some individuals will wish to “spen[d] ‘substan­ tial amounts of money in order to communicate [their] political ideas through sophisticated’ means.” Ante, at 14– 15 ()). Aggregate contribution ceilings limit an indi­ vidual’s ability to engage in such “broader participation in the democratic process,” while insufficiently advancing any legitimate governmental objective. Ante, at 16, 21–29. Hence, the plurality finds, they violate the Constitution. The plurality’s conclusion rests upon three separate but related claims. Each is fatally flawed. First, the plurality says that given the base limits on contributions to candi­ Cite as: 572 U. S. (2014) 3 BREYER, J., dissenting dates and political committees, aggregate limits do not further any independent governmental objective worthy of protection. And that is because, given the base limits, “[s]pending large sums of money in connection with elec­ tions” does not “give rise to corruption.” Ante, at 19. In making this argument, the plurality relies heavily upon a narrow definition of “corruption” that excludes efforts to obtain “ ‘influence over or access to’ elected officials or political parties. ” (quoting Citizens at 359); accord, ante, at 18–20, 22–29. Second, the plurality assesses the instrumental objec­ tive of the aggregate limits, namely, safeguarding the base limits. It finds that they “do not serve that function in any meaningful way.” Ante, at 22. That is because, even without the aggregate limits, the possibilities for circum­ venting the base limits are “implausible” and “divorced from reality.” Ante, at 23, 24, 28. Third, the plurality says the aggregate limits are not a “ ‘reasonable’ ” policy tool. Rather, they are “poorly tailored to the Government’s interest in preventing circumvention of the base limits.” Ante, at 30 ). The plurality imagines several alternative regulations that it says might just as effectively thwart circumvention. Accordingly, it finds, the aggregate caps are out of “ ‘pro­ portion to the [anticorruption] interest served.’ ” Ante, at 30 (quoting at ). The plurality’s first claim—that large aggregate contri­ butions do not “give rise” to “corruption”—is plausible only because the plurality defines “corruption” too narrowly. The plurality describes the constitutionally permissible objective of campaign finance regulation as follows: “Con­ gress may target only a specific type of corruption—‘quid pro quo’ corruption.” Ante, at 19. It then defines quid pro 4 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting quo corruption to mean no more than “a direct exchange of an official act for money”—an act akin to bribery. Ante, at 2–3. It adds specifically that corruption does not include efforts to “garner ‘influence over or access to’ elected offi­ cials or political parties.” Ante, at 19 (quoting Citizens ). Moreover, the Government’s ef­ forts to prevent the “appearance of corruption” are “equally confined to the appearance of quid pro quo corruption,” as narrowly defined. Ante, at 19. In the plurality’s view, a federal statute could not prevent an individual from writ­ ing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.” Ante, at 37. This critically important definition of “corruption” is inconsistent with the Court’s prior case law (with the possible exception of Citizens as I will explain below). It is virtually impossible to reconcile with this Court’s decision in upholding the Bipartisan Campaign Reform Act of 2002 (BCRA). And it misun- derstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation. A In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recog­ nized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself. Consider at least one reason why the First Amendment Cite as: 572 U. S. (2014) 5 BREYER, J., dissenting protects political speech. Speech does not exist in a vac- uum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives. This is not a new idea. Eighty-seven years ago, Justice Brandeis wrote that the First Amendment’s protection of speech was “essential to effective democracy.” Whitney v. California, Chief Justice Hughes reiterated the same idea shortly thereafter: “A fundamental principle of our constitutional system” is the “maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people.” In Citizens the Court stated that “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” The Framers had good reason to emphasize this same connection between political speech and governmental action. An influential 18th-century continental philoso­ pher had argued that in a representative democracy, the people lose control of their representatives between elec­ tions, during which interim periods they were “in chains.” J. Rousseau, An Inquiry Into the Nature of the Social Contract 265–266 (transl. 1791). The Framers responded to this criticism both by requir­ ing frequent elections to federal office, and by enacting a First Amendment that would facilitate a “chain of com­ munication between the people, and those, to whom they have committed the exercise of the powers of government.” J. Wilson, Commentaries on the Constitution of the States of America 30–31 (1792). This “chain” would establish the necessary “communion of interests and sympathy of sentiments” between the people and their 6 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting representatives, so that public opinion could be channeled into effective governmental action. The Federalist No. 57, p. 386 (J. Madison); accord, T. Benton, 1 Abridgement of the Debates of Congress, from 1789 to 1856, p. 141 (1857) (explaining that the First Amendment will strengthen American democracy by giving “ ‘the peo­ ple’ ” a right to “ ‘publicly address their representatives,’ ” “ ‘privately advise them,’ ” or “ ‘declare their sentiments by petition to the whole body’ ” (quoting James Madison)). Accordingly, the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters. What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitution­ ally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Inso­ far as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ con­ cern that a few large donations not drown out the voices of the many. See, e.g., –27. That is also why the Court has used the phrase “subver­ sion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” See also Federal Election 208 (1982) (the Government’s interests in preventing corruption “directly implicate the integrity of our electoral process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided: Campaign Fi­ Cite as: 572 U. S. (2014) 7 BREYER, J., dissenting nance Reform and the Constitution 7–16, 80–94 (forthcom­ ing 2014) (arguing that the efficacy of American democ- racy depends on “electoral integrity” and the responsiveness of public officials to public opinion). The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to com­ municate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether. See Nixon v. Shrink Government PAC, 528 U.S. (2000) (“[T]he cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance”). Democracy, the Court has often said, cannot work unless “the people have faith in those who govern.” The upshot is that the interests the Court has long described as preventing “corruption” or the “appearance of corruption” are more than ordinary factors to be weighed against the constitutional right to political speech. Rather, they are interests rooted in the First Amendment it- self. They are rooted in the constitutional effort to create a democracy responsive to the people—a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects. Given that end, we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plural- ity’s limited definition of “corruption” suggests. We should see these laws as seeking in significant part to strengthen, rather than weaken, the First Amendment. To say this is not to deny the potential for conflict between (1) the need to permit contributions that pay for the diffusion of ideas, and (2) the need to limit payments in order to help main­ tain the integrity of the electoral process. But that conflict takes place within, not outside, the First Amendment’s 8 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting boundaries. B Since the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond those the plurality describes, the plurality’s notion of corruption is flatly inconsistent with the basic constitutional rationale I have just described. Thus, it should surprise no one that this Court’s case law (Citizens excepted) insists upon a considerably broader definition. In for instance, the Court said explicitly that aggregate limits were constitutional because they helped “prevent evasion [through] huge contributions to the candidate’s political party,” (the contrary to what the plurality today seems to believe, see ante, at 36–39). Moreover, upheld the base limits in significant part because they helped thwart “the appear­ ance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large indi- vidual financial contributions.” (emphasis added). And it said that Congress could reasonably con­ clude that criminal laws forbidding “the giving and taking of bribes” did not adequately “deal with the reality or appearance of corruption.” Bribery laws, the Court recognized, address “only the most blatant and specific attempts of those with money to influence gov­ ernmental action.” The concern with corruption extends further. Other cases put the matter yet more strongly. In for example, the Court found constitutional a ban on direct contributions by corporations because of the need to prevent corruption, properly “understood not only as quid pro quo agreements, but also as undue influence on an officeholder’s judgment.” Federal Election Comm’n v. In Federal Cite as: 572 U. S. (2014) 9 BREYER, J., dissenting Election (Colo- rado ), the Court upheld limits imposed upon coordinated expenditures among parties and candidates because it found they thwarted corruption and its appearance, again understood as including “undue influence” by wealthy donors. In Shrink the Court upheld limitations imposed by the Legislature upon contributions to state political candidates, not only because of the need to prevent bribery, but also because of “the broader threat from politicians too compliant with the wishes of large contributors.” 528 U.S., 9. C Most important, in this Court considered the constitutionality of the Bipartisan Campaign Reform Act of 2002, an Act that set new limits on “soft money” contri­ butions to political parties. “Soft money” referred to funds that, prior to BCRA, were freely donated to parties for activities other than directly helping elect a federal candi­ date—activities such as voter registration, “get out the vote” drives, and advertising that did not expressly advo­ cate a federal candidate’s election or defeat. 540 U.S., at 122–124. BCRA imposed a new ban on soft money contri­ butions to national party committees, and greatly cur­ tailed them in respect to state and local parties. at 133–134, 161–164. The Court in upheld these new contribution restrictions under the First Amendment for the very rea­ son the plurality today discounts or ignores. Namely, the Court found they thwarted a significant risk of cor­ ruption—understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives. In reaching its conclusion in the Court relied upon a vast record compiled in the District Court. That 10 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting record consisted of over 100,000 pages of material and included testimony from more than 200 witnesses. See What it showed, in detail, was the web of relationships and un- derstandings among parties, candidates, and large donors that underlies privileged access and influence. See –152, 154–157, 167–171, 182– 184. The District Judges in made clear that the record did “not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money.” Indeed, no one had identified a “single discrete instance of quid pro quo corruption” due to soft money. But what the record did demonstrate was that enormous soft money contributions, ranging between $1 million and $5 million among the largest donors, enabled wealthy contributors to gain disproportionate “access to federal lawmakers” and the ability to “influenc[e] legislation.” (opinion of Kollar-Kotelly, J.). There was an indisputable link between generous political donations and opportunity after opportunity to make one’s case directly to a Member of Congress. Testimony by elected officials supported this conclusion. See, e.g., (“ ‘Large donors of both hard and soft money receive special treatment’ ” (Sen. Simpson)); (“ ‘Donations, including soft money donations to political parties, do affect how Congress operates. It’s only natural, and happens all too often, that a busy Senator with 10 minutes to spare will spend those minutes returning the call of a large soft money donor’ ” (Sen. Boren)); (“ ‘At a minimum, large soft money donations purchase an opportunity for the donors to make their case to elected officials’ ” (Sen. McCain)). Furthermore, testimony from party operatives showed that national political par­ ties had created “major donor programs,” through which Cite as: 572 U. S. (2014) 11 BREYER, J., dissenting they openly “offer[ed] greater access to federal office hold­ ers as the donations gr[e]w larger.” I have placed in Appendix A more examples of the kind of evi­ dence that filled the District Court record in This Court upheld BCRA’s limitations on soft money contributions by relying on just the kind of evidence I have described. We wrote: “The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of of­ ficeholders Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] Congress has not shown that there exists real or apparent corruption. [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­ lished that Congress’ legitimate interest extends be­ yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ ment, and the appearance of such influence.’ ” 540 U.S., at 146, 149–150 (quoting Colorado 533 U.S., at ; emphasis added; paragraphs and paragraph breaks omitted). We specifically rejected efforts to define “corruption” in ways similar to those the plurality today accepts. We added: “Just as troubling to a functioning democracy as clas­ sic quid pro quo corruption is the danger that office­ holders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contri­ butions valued by the officeholder.” Insofar as today’s decision sets forth a significantly nar­ 12 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting rower definition of “corruption,” and hence of the public’s interest in political integrity, it is flatly inconsistent with D One case, however, contains language that offers the plurality support. That case is Citizens There, as the plurality points out, ante, at 19, the Court said that “[w]hen identified a sufficiently important gov­ ernmental interest in preventing corruption or the ap­ pearance of corruption, that interest was limited to quid pro quo corruption.” 558 U.S., Further, the Court said that quid pro quo corruption does not include “influ­ ence over or access to elected officials,” because “ ‘generic favoritism or influence theory is at odds with standard First Amendment analyses.’ ” (quoting (KENNEDY, J., concurring in judgment in part and dissenting in part)). How should we treat these statements from Citizens now? They are not essential to the Court’s holding in the case—at least insofar as it can be read to require federal law to treat corporations and trade unions like individuals when they independently pay for, e.g., televi­ sion advertising during the last 60 days of a federal elec­ tion. Citizens Taken literally, the statements cited simply refer to and characterize still­ earlier Court cases. They do not require the more absolute reading that the plurality here gives them. More than that. Read as the plurality reads them to­ day, the statements from Citizens about the proper contours of the corruption rationale conflict not just with language in the opinion, but with ’s very holding. See at 9–11. Did the Court in Citi- zens intend to overrule ? I doubt it, for if it did, the Court or certainly the dissent would have said something about it. The total silence of all opinions in Cite as: 572 U. S. (2014) 13 BREYER, J., dissenting Citizens with respect to this matter argues strongly in favor of treating the language quoted above as dic- tum, as an overstatement, or as limited to the context in which it appears. Citizens itself contains language that supports the last mentioned reading, for it says that “[] did not extend this rationale [about the reality or appearance of corruption] to independent expenditures, and the Court does not do so here.” And it adds that, while “[t]he BCRA record establishes that certain donations to political par­ ties, called ‘soft money,’ were made to gain access to elected officials,” “[t]his case, however, is about independent expenditures, not soft money.” at 360–361 (emphasis added). The plurality’s use of Citizens ’s narrow definition of corruption here, however, is a different matter. That use does not come accompanied with a limiting context (independent expenditures by corporations and unions) or limiting language. It applies to the whole of campaign finance regulation. And, as I have pointed out, it is flatly inconsistent with the broader definition of corruption upon which ’s holding depends. So: Does the Court intend today to overrule ? Or does it intend to leave and BCRA in place? The plurality says the latter. Ante, at 20–21, n. 6 (“Our holding about the constitutionality of the aggregate limits clearly does not overrule ’s holding about ‘soft money’ ”). But how does the plurality explain its rejection of the broader definition of corruption, upon which ’s holding depends? Compare ante, at 18–21, with 149–153. I The plurality invalidates the aggregate contribution limits for a second reason. It believes they are no longer needed to prevent contributors from circumventing federal 14 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting limits on direct contributions to individuals, political parties, and political action committees. Ante, at 22–29. Cf. 424 U.S., (aggregate limits “prevent evasion” of base contribution limits). Other “campaign finance laws,” combined with “experience” and “common sense,” foreclose the various circumvention scenarios that the Government hypothesizes. Ante, Accordingly, the plurality concludes, the aggregate limits provide no added benefit. The plurality is wrong. Here, as in in the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of cor­ ruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumven­ tion will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are com­ plex, but they are well known, or will become well known, to party fundraisers. I shall describe three. A Example One: Gifts for the Benefit of the Party. Cam­ paign finance law permits each individual to give $64,800 over two years to a national party committee. 2 U.S. C. §a(a)(1)(B); (2013). The two major political parties each have three national committees. Ante, at 4, n. 1. Federal law also entitles an individual to give $20,000 to a state party committee over two years. §a(a)(1)(D). Each major political party has 50 such committees. Those individual limits mean that, in the absence of any aggregate limit, an individual could legally give to the Republican Party or to the Democratic Party about $1.2 million over two years. See Appendix B, Table 1, infra, at 39. To make it easier for contributors to give Cite as: 572 U. S. (2014) 15 BREYER, J., dissenting gifts of this size, each party could create a “Joint Party Committee,” comprising all of its national and state party committees. The titular heads could be the Speaker of the House of Representatives and the Minority Leader of the House. A contributor could then write a single check to the Joint Party Committee—and its staff would divide the funds so that each constituent unit receives no more than it could obtain from the contributor directly ($64,800 for a national committee over two years, $20,000 for a state committee over the same). Before today’s decision, the total size of Rich Donor’s check to the Joint Party Commit­ tee was capped at $74,600—the aggregate limit for dona­ tions to political parties over a 2-year election cycle. See §a(a)(3)(B); After today’s decision, Rich Donor can write a single check to the Joint Party Committee in an amount of about $1.2 million. Will political parties seek these large checks? Why not? The recipient national and state committees can spend the money to buy generic party advertisements, say television commercials or bumper stickers saying “Support Republi­ cans,” “Support Democrats,” or the like. They also can transfer the money to party committees in battleground States to increase the chances of winning hotly contested seats. See §a(a)(4) (permitting national or state po- litical committees to make unlimited “transfers” to other committees “of the same political party”). Will party officials and candidates solicit these large contributions from wealthy donors? Absolutely. Such con- tributions will help increase the party’s power, as well as the candidate’s standing among his colleagues. Will elected officials be particularly grateful to the large donor, feeling obliged to provide him special access and influence, and perhaps even a quid pro quo legislative favor? That is what we have previously believed. See (“Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of 16 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting the same corruption concerns posed by contributions made directly to the candidate or officeholder”); (opin­ ion of KENNEDY, J.) (“The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment”); Colorado n. 23 (explaining how a candidate can “become a player [in his party] beyond his own race” by “directing donations to the party and making sure that the party knows who raised the money,” and that “the donor’s influence is multiplied” in such instances). And, as the statements collected in Appendix A, infra, make clear, we have believed this with good reason. Example Two: Donations to Individual Candidates (The $3.6 Million Check). The first example significantly un- derstates the problem. That is because federal election law also allows a single contributor to give $5,200 to each party candidate over a 2-year election cycle (assuming the candidate is running in both a primary and a general election). §a(a)(1)(A); There are 435 party candidates for House seats and 33 party candi­ dates for Senate seats in any given election year. That makes an additional $2.4 million in allowable contribu­ tions. Thus, without an aggregate limit, the law will permit a wealthy individual to write a check, over a 2-year election cycle, for $3.6 million—all to benefit his political party and its candidates. See Appendix B, Table 2(a), infra, at 39. To make it easier for a wealthy donor to make a contri­ bution of this size, the parties can simply enlarge the composition of the Joint Party Committee described in Example One, so that it now includes party candidates. And a party can proliferate such joint entities, perhaps calling the first the “Smith Victory Committee,” the second the “Jones Victory Committee,” and the like. See 11 CFR (I say “perhaps” because too trans­ parent a name might call into play certain earmarking Cite as: 572 U. S. (2014) 17 BREYER, J., dissenting rules. But the Federal Election Commission’s (FEC) database of joint fundraising committees in shows similarly named entities, e.g., “Landrieu Wyden Victory Fund,” etc.). As I have just said, without any aggregate limit, the law will allow Rich Donor to write a single check to, say, the Smith Victory Committee, for up to $3.6 million. This check represents “the total amount that the contributor could contribute to all of the participants” in the Commit­ tee over a 2-year cycle. The Committee would operate under an agreement that provides a “for- mula for the allocation of fundraising proceeds” among its constituent units. And that “formula” would divide the proceeds so that no committee or can- didate receives more than it could have received from Rich Donor directly—$64,800, $20,000, or $5,200. See So what is wrong with that? The check is considerably larger than Example One’s check. But is there anything else wrong? The answer is yes, absolutely. The law will also permit a party and its candidates to shift most of Rich Donor’s contributions to a single candidate, say Smith. Here is how: The law permits each candidate and each party commit­ tee in the Smith Victory Committee to write Candidate Smith a check directly. For his primary and general elections combined, they can write checks of up to $4,000 (from each candidate’s authorized campaign committee) and $10,000 (from each state and national committee). 2 U.S. C. a(a)(2)(A); (b). This yields a potential $1,872,000 (from candidates) plus $530,000 (from party committees). Thus, the law permits the candidates and party entities to redirect $2.37 million of Rich Donor’s $3.6 million check to Candidate Smith. It also permits state and national committees to contribute to Smith’s general election campaign through making 18 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting coordinated expenditures—in amounts that range from $46,600 to $2.68 million for a general election (depending upon the size of Smith’s State and whether he is running for a House or Senate seat). –8532. See Appendix B, Table 2(b), infra, at 40. The upshot is that Candidate Smith can receive at least $2.37 million and possibly the full $3.6 million contributed by Rich Donor to the Smith Victory Committee, even though the funds must first be divided up among the constituent units before they can be rerouted to Smith. Nothing requires the Smith Victory Committee to explain in advance to Rich Donor all of the various transfers that will take place, and nothing prevents the entities in the Committee from informing the donor and the receiving candidate after the fact what has transpired. Accordingly, the money can be donated and rerouted to Candidate Smith without the donor having violated the base limits or any other FEC regulation. And the evidence in the record reprinted in Appendix A, infra—with respect to soft money contributions—makes clear that Candidate Smith will almost certainly come to learn from whom he has received this money. The parties can apply the same procedure to other large donations, channeling money from Rich Donor Two to Candidate Jones. If 10 or 20 candidates face particularly tight races, party committees and party candidates may work together to channel Rich Donor One’s multimillion dollar contribution to the Most Embattled Candidate (e.g., Candidate Smith), Rich Donor Two’s multimillion dollar contribution to the Second Most Embattled Candidate (e.g., Candidate Jones), and so on down the line. If this does not count as evasion of the base limits, what does? Present aggregate limits confine the size of any individual gift to $123,200. Today’s opinion creates a loophole meas­ ured in the millions. Example Three: Proliferating Political Action Commit- Cite as: 572 U. S. (2014) 19 BREYER, J., dissenting tees (PACs). Campaign finance law prohibits an individual from contributing (1) more than $5,200 to any candidate in a federal election cycle, and (2) more than $5,000 to a PAC in a calendar year. 2 U.S. C. §§a(a)(1)(A), (C); 78 Fed. Reg. 8532. It also prohibits (3) any PAC from contributing more than $10,000 to any candidate in an election cycle. §(a)(2)(A). But the law does not prohibit an individual from contributing (within the current $123,200 biannual aggregate limit) $5,000 to each of an unlimited total num­ ber of PACs. And there, so to speak, lies the rub. Here is how, without any aggregate limits, a party will be able to channel $2 million from each of ten Rich Do- nors to each of ten Embattled Candidates. Groups of party supporters—individuals, corporations, or trade unions— create 200 PACs. Each PAC claims it will use the funds it raises to support several candidates from the party, though it will favor those who are most endangered. (Each PAC qualifies for “multicandidate” status because it has received contributions from more than 50 persons and has made contributions to five federal candidates at some point previously. §a(a)(4); (e)(3)). Over a 2-year election cycle, Rich Donor One gives $10,000 to each PAC ($5,000 per year)—yielding $2 million total. Rich Donor 2 does the same. So, too, do the other eight Rich Donors. This brings their total donations to $20 million, disbursed among the 200 PACs. Each PAC will have collected $100,000, and each can use its money to write ten checks of $10,000—to each of the ten most Em­ battled Candidates in the party (over two years). See Appendix B, Table 3, infra, at 41. Every Embattled Can­ didate, receiving a $10,000 check from 200 PACs, will have collected $2 million. The upshot is that ten Rich Donors will have contrib- uted $2 million each, and ten Embattled Candidates will have collected $2 million each. In this example, unlike Example Two, the recipient candidates may not know 20 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting which of the ten Rich Donors is personally responsible for the $2 million he or she receives. But the recipient candi­ date is highly likely to know who the ten Rich Donors are, and to feel appropriately grateful. Moreover, the ability of a small group of donors to contribute this kind of money to threatened candidates is not insignificant. In the example above—with ten Rich Donors giving $2 million each, and ten Embattled Candidates receiving $2 million each—the contributions would have been enough to finance a consid­ erable portion of, and perhaps all of, the candidates’ races in the elections. See Appendix C, Table 1, infra, at 42 (showing that in the average winning House candidate spent $1.6 million and the average winning Senate candidate spent $11.5 million). B The plurality believes that the three scenarios I have just depicted either pose no threat, or cannot or will not take place. It does not believe the scenario depicted in Example One is any cause for concern, because it involves only “general, broad-based support of a political party.” Ante, at 37. Not so. A candidate who solicits a multimil­ lion dollar check for his party will be deeply grateful to the checkwriter, and surely could reward him with a quid pro quo favor. The plurality discounts the scenarios depicted in Example Two and Example Three because it finds such circumvention tactics “illegal under current campaign finance laws,” “implausible,” or “divorced from reality.” Ante, at 23, 24, 28. But they are not. The plurality’s view depends in large part upon its claim that since this Court decided in 1976, changes in either statutory law or in applicable regulations have come to make it difficult, if not impossible, for these cir­ cumvention scenarios to arise. Hence, it concludes, there is no longer a need for aggregate contribution limits. See ante, at 11–13, 22–29. But a closer examination of the five Cite as: 572 U. S. (2014) 21 BREYER, J., dissenting legal changes to which the plurality points makes clear that those changes cannot effectively stop the abuses that I have depicted. First, the plurality points out that in 1976 (a few months after this Court decided ) Congress “added limits on contributions to political committees,” i.e., to PACs. Ante, at 11; accord, (codified at 2 U.S. C. §a(a)(1)(C)). But Example Three, the here­ relevant example, takes account of those limits, namely, $5,000 to a PAC in any given year. And it shows that the per-PAC limit does not matter much when it comes to the potential for circumvention, as long as party supporters can create dozens or hundreds of PACs. Federal law places no upper limit on the number of PACs supporting a party or a group of party candidates that can be estab­ lished. And creating a PAC is primarily a matter of pa­ perwork, a knowledgeable staff person, and a little time. Second, the plurality points out that in 1976, Congress “also added an antiproliferation rule prohibiting donors from creating or controlling multiple affiliated political committees.” Ante, at 12. The rule provides that “all contributions made by political committees established or financed or maintained or controlled” by the same corpora­ tion, labor organization, person, or group of persons, “shall be considered to have been made by a single political committee.” §a(a)(5). But different supporters can create different PACs. Indeed, there were roughly 2,700 “nonconnected” PACs (i.e., PACs not connected to a spe- cific corporation or labor union) operating during the elections. Ante, at 24. In a future without aggregate contribution limits, far more nonconnected PACs will likely appear. The plurality also notes that the FEC can examine certain “ ‘circumstantial factors,’ ” such as “ ‘com­ mon or overlapping membership’ ” or “ ‘similar patterns of contributions,’ ” to determine whether a group of PACs are affiliated. Ante, (quoting (g)(4)(ii)). 22 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting But the ultimate question in the affiliation inquiry is whether “one committee or organization [has] been estab­ lished, financed, maintain or controlled by another com­ mittee or sponsoring organization.” Just because a group of multicandidate PACs all support the same party and all decide to donate funds to a group of endangered candidates in that party does not mean they will qualify as “affiliated” under the relevant definition. This rule appears inadequate to stop the sort of circumvention depicted in Example Three. Third, the plurality says that a post- regulation has strengthened the statute’s earmarking provision. Ante, at 12. Namely, the plurality points to a rule pro- mulgated by the FEC in 1976, specifying that earmarking includes any “designation ‘whether direct or indirect, express or implied, oral or written.’ ” (quoting 11 CFR accord, (1976). This means that if Rich Donor were to give $5,000 to a PAC while “designat[ing]” (in any way) that the money go to Candidate Smith, those funds must count towards Rich Donor’s total allowable contributions to Smith—$5,200 per election cycle. But the virtually identical earmarking provision in effect when this Court decided would have required the same thing. That provision also counted, when applying the base contribution limits, “all contri- butions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to a candidate.” 88 Stat. 1264; accord, 2 U.S. C. §a(a)(8) (same). What is the difference? Fourth, the plurality points out that the FEC’s regula­ tions “specify that an individual who has contributed to a particular candidate committee may not also contribute to a single-candidate committee for that candidate.” Ante, at 12–13 (citing (h)(1); emphasis added). The Cite as: 572 U. S. (2014) 23 BREYER, J., dissenting regulations, however, do not prevent a person who has contributed to a candidate from also contributing to multi- candidate committees that support the candidate. Indeed, the rules specifically authorize such contributions. See (“A person may contribute to a candidate and also contribute to a political committee which has sup- ported, or anticipates supporting, the same candidate in the same election,” as long as the political committee is “not the candidate’s principal campaign committee” or a “single candidate committee” ). Example Three illustrates the latter kind of contribution. And briefs before us make clear that the possibility for circumventing the base limits through making such contributions is a realistic, not an illusory, one. See Brief for Appellee 36 (demonstrating that many PACs today explain in their public materials just what fairly small group of candidates they intend to support); Brief for Americans for Campaign Reform as Amicus Curiae 14–15 (similar). Fifth, the plurality points to another FEC regulation (also added in 1976), which says that “an individual who has contributed to a candidate” may not “also contribute to a political committee that has supported or anticipates supporting the same candidate if the individual knows that ‘a substantial portion [of his contribution] will be contributed to, or expended on behalf of,’ that candidate.” Ante, at 13 (quoting (h)(2); brackets in original); accord, This regulation is important, for in principle, the FEC might use it to pre­ vent the circumstances that Examples Two and Three set forth from arising. And it is not surprising that the plu­ rality relies upon the existence of this rule when it de­ scribes those circumstances as “implausible,” “illegal,” or “divorced from reality.” Ante, at 23, 24, 28. In fact, however, this regulation is not the strong anti­ circumvention weapon that the plurality imagines. De­ spite the plurality’s assurances, it does not “disarm” the 24 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting possibilities for circumvention. Ante, at 23. That is be­ cause the regulation requires a showing that donors have “knowledge that a substantial portion” of their contribu­ tions will be used by a PAC to support a candidate to whom they have already contributed. (2) (em­ phasis added). And “knowledge” is hard to prove. I have found nine FEC cases decided since the year 2000 that refer to this regulation. In all but one, the FEC failed to find the requisite “knowledge”—despite the presence of Example Two or Example Three circumstances. See Fac­ tual and Legal Analysis, In re: Transfund PAC, Matter Under Review (MUR) 6221, p. 11 (FEC, June 7, 2010) (although the donor “might reasonably infer that some portion of his contribution” to a candidate’s Leadership PAC would be used to support the candidate, “such an inference alone does not suggest that [he] had ‘actual knowledge’ ” of such); Factual and Legal Analysis, In re: John Shadegg’s Friends, MUR 5968, pp. 3, 6–7 (FEC, Nov. 10, 2008) (“[T]here is no basis on which to conclude that [the donors] knew that the funds they contributed to LEAD PAC would be used to support the Shadegg Com­ mittee” even though Congressman Shadegg solicited the donations and LEAD PAC was Congressman Shadegg’s Leadership PAC); Factual and Legal Analysis, In re: Wal- berg for Congress, MUR 5881, pp. 6, 9–11 (FEC, Aug. 15, 2007) (finding seven contributors, who gave to a candidate and to a PAC that provided 86% of the candidate’s financ­ ing, had not shown “knowledge”); Factual and Legal Anal­ ysis, In re: Matt Brown for Senate, MUR 5732, p. 11 (FEC, Apr. 4, 2007) (“Though it may be reasonable to infer that the individual donors solicited by Brown gave to the State Parties under the assumption that some portion of their contribution might then be donated to the Brown Commit­ tee, such an inference alone is insufficient to find reason to believe (h) has been violated”); First Gen­ eral Counsel’s Report, In re: Liffrig for Senate, MUR 5678, Cite as: 572 U. S. (2014) 25 BREYER, J., dissenting pp. 8–9 (FEC, Nov. 27, 2006) (similar); First General Counsel’s Report, In re: Nesbitt, MUR 5445, pp. 11–12 (FEC, Feb. 2, 2005) (similar); First General Counsel’s Report, In re: Keystone Corp., MUR 5019, pp. 23–29 (similar); General Counsel’s Report #2, In re: Boston Capital Corp., MUR 4538, pp. 17–18 (FEC, Mar. 10, 2000) (recommending the FEC take no action with respect to the issue). Given this record of FEC (in)activity, my reaction to the plurality’s reliance upon agency enforcement of this rule (as an adequate substitute for Congress’ aggregate limits) is like Oscar Wilde’s after reading Dickens’ account of the death of Little Nell: “One must have a heart of stone,” said Wilde, “to read [it] with­ out laughing.” Oxford Dictionary of Humorous Quotations 86 I have found one contrary example—the single example to which the plurality refers. Ante, ). In that case, the FEC found prob­ able cause to believe that three individual contributors to several PACs had the requisite “knowledge” that the PACs would use a “substantial portion” of their contributions to support a candidate to whom they had already contributed— Sam Brownback, a candidate for the Senate (for two of the contributors), and Robert Riley, a candidate for the House (for the third). The individuals had made donations to several PACs operating as a network, under the direc­ tion of a single political consulting firm. The two contribu­ tors to Sam Brownback were his parents-in-law, and the FEC believed they might be using the PAC network to channel extra support to him. The contributor to Robert Riley was his son, and the FEC believed he might be doing the same. The facts in this case are unusual, for individ- ual contributors are not typically relatives of the candidates they are seeking to support, and ordinary PACs do not tend to work in coordination under the direction of a con­ 26 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting sulting firm. In any event, this single swallow cannot make the plurality’s summer. Thus, it is not surprising that throughout the many years this FEC regulation has been in effect, political parties and candidates have established ever more joint fundraising committees (numbering over 500 in the last federal elections); candidates have established ever more “Leadership PACs” (numbering over 450 in the last elec­ tions); and party supporters have established ever more multicandidate PACs (numbering over 3,000 in the last elections). See Appendix C, Tables 2–3, infra, at 42–43; FEC, 2014 Committee Summary (reporting the number of “qualified” (or multicandidate) PACs in ), online at http://www.fec.gov/data/CommitteeSummary.do (all Inter­ net materials as visited Mar. 28, 2014, and available in Clerk of Court’s case file). Using these entities, candidates, parties, and party supporters can transfer and, we are told, have transferred large sums of money to specific candidates, thereby avoid­ ing the base contribution limits in ways that Examples Two and Three help demonstrate. See Brief for Appellee 38–39, 53–54; Brief for Campaign Legal Center, et al. as Amici Curiae 12–15; Brief of Democratic Members of the States House of Representatives as Amici Curiae 28–29. They have done so without drawing FEC prosecu­ tion—at least not according to my (and apparently the plurality’s) search of publicly available records. That is likely because in the real world, the methods of achieving circumvention are more subtle and more complex than our stylized Examples Two and Three depict. And persons have used these entities to channel money to candidates without any individual breaching the current aggregate $123,200 limit. The plurality now removes that limit, thereby permitting wealthy donors to make aggregate contributions not of $123,200, but of several millions of dollars. If the FEC regulation has failed to plug a small Cite as: 572 U. S. (2014) 27 BREYER, J., dissenting hole, how can it possibly plug a large one? The plurality concludes that even if circumvention were a threat, the aggregate limits are “poorly tailored” to ad- dress it. Ante, at 30. The First Amendment requires “ ‘a fit that is reasonable,’ ” and there is no such “fit” here because there are several alternative ways Congress could prevent evasion of the base limits. (quoting 492 U. S., at ). For instance, the plurality posits, Congress (or the FEC) could “tighten transfer rules”; it could require “contributions above the current aggregate limits to be deposited into segregated, nontransferable accounts and spent only by their recipients”; it could define “how many candidates a PAC must support in order to ensure that ‘a substantial portion’ of a donor’s contribution is not rerouted to a certain candidate”; or it could prohibit “do­ nors who have contributed the current maximum sums from further contributing to political committees that have indicated they will support candidates to whom the donor has already contributed.” Ante, at 33–35 (quoting 11 CFR (2)). The plurality, however, does not show, or try to show, that these hypothetical alternatives could effectively replace aggregate contribution limits. Indeed, it does not even “opine on the validity of any particular proposal,” ante, at 35—presumably because these proposals them­ selves could be subject to constitutional challenges. For the most part, the alternatives the plurality mentions were similarly available at the time of Their hypothetical presence did not prevent the Court from upholding aggregate limits in 1976. How can their con­ tinued hypothetical presence lead the plurality now to conclude that aggregate limits are “poorly tailored?” See ante, at 30. How can their continued hypothetical pres­ ence lead the Court to overrule now? 28 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting In sum, the explanation of why aggregate limits are needed is complicated, as is the explanation of why other methods will not work. But the conclusion is simple: There is no “substantial mismatch” between Congress’ legitimate objective and the “means selected to achieve it.” Ante, at 10. The Court, as in should hold that aggregate contribution limits are constitutional. V The District Court in this case, holding that foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. See If the plu­ rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place? In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objec­ tive. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did. See, e.g., –154 (upholding federal re­ strictions on soft money by drawing on an extensive Dis­ trict Court record that contained declarations from current and former Members of Congress); Colorado 533 U.S., at 457–465 (upholding federal limits on coordinated ex­ penditures between parties and candidates on the basis of a summary judgment record that contained declarations from party operatives, fundraisers, and Members of Con­ gress); Shrink (upholding ’s contribution limits on the basis of the lower court record, which contained similar declarations). If we are to overturn an act of Congress here, we should do so on Cite as: 572 U. S. (2014) 29 BREYER, J., dissenting the basis of a similar record. For one thing, an evidentiary record can help us deter­ mine whether or the extent to which we should defer to Congress’ own judgments, particularly those reflecting a balance of the countervailing First Amendment interests I have described. Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and ap- plying significant discretion and judgment. To what ex­ tent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it? These kinds of questions, while not easily answered, are questions that Congress is far better suited to resolve than are judges. Thus, while court review of contribution limits has been and should be “rigorous,” 424 U.S., at 29, we have also recognized that “deference to legislative choice is warranted.” And that deference has taken account of facts and circum­ stances set forth in an evidentiary record. For another thing, a comparison of the plurality’s opin­ ion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” Ante, at 14, n. 4. But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental inter­ 30 MCCUTCHEON v. FEDERAL ELECTION COMM’N BREYER, J., dissenting est—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy. The plurality itself spends pages citing figures about campaign spending to defend its “legal” conclusion. Ante, at 24–26, 27–28, 30–32. The problem with such reasoning is that this Court’s expertise does not lie in marshaling facts in the primary instance. That is why in the past, when answering similar questions about the constitutionality of restrictions on campaign contributions, we have relied on an extensive evidentiary record pro­ duced below to inform our decision. Without further development of the record, however, I fail to see how the plurality can now find grounds for overturning The justification for aggregate con­ tribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. Part The threat to that integrity posed by the risk of special access and influence remains real. Part I, Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumven­ tion. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits. Part The plurality reaches the opposite conclusion. The re­ sult, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opin­ ion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform. With respect, I dissent. Cite as: 572 U. S. (2014) 31 Appendix A toopinion of BREYER, J. BREYER J., dissenting

Justice Kagan

majority

Kaley v. United States

2014-02-25

https://www.courtlistener.com/opinion/2654533/kaley-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/2654533/

A federal statute, 21 U.S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U.S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer. In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the sei- zure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determi- nation of probable cause to believe they committed the crimes charged. We hold that they have no right to reliti- gate that finding. 2 KALEY v. UNITED STATES Opinion of the Court I A Criminal forfeitures are imposed upon conviction to confiscate assets used in or gained from certain serious crimes. See 21 U.S. C. §853(a). Forfeitures help to en- sure that crime does not pay: They at once punish wrong- doing, deter future illegality, and “lessen the economic power” of criminal enterprises. Caplin & Drysdale, Char- tered v. United States, 491 U.S. 617, 630 (1989); see id., at 634 (“Forfeiture provisions are powerful weapons in the war on crime”). The Government also uses forfeited prop- erty to recompense victims of crime, improve conditions in crime-damaged communities, and support law enforce- ment activities like police training. See id., at 629–630.1 Accordingly, “there is a strong governmental interest in obtaining full recovery of all forfeitable assets.” Id., at 631. In line with that interest, §853(e)(1) empowers courts to enter pre-trial restraining orders or injunctions to “pre- serve the availability of [forfeitable] property” while crim- inal proceedings are pending. Such an order, issued “[u]pon application of the United States,” prevents a de- fendant from spending or transferring specified property, including to pay an attorney for legal services. Ibid. In Monsanto, our principal case involving this procedure, we held a pre-trial asset restraint constitutionally permissible whenever there is probable cause to believe that the property is forfeitable. See 491 U.S., at 615. That determination has two parts, reflecting the requirements for forfeit- —————— 1 Between January 2012 and April 2013, for example, the Department of Justice returned over $1.5 billion in forfeited assets to more than 400,000 crime victims. See Dept. of Justice, Justice Department Returned $1.5 Billion to Victims of Crime Since January 2012 (Apr. 26, 2013), online at http://www.justice.gov/opa/pr/2013/April/13-crm- 480.html (as visited Feb. 21, 2014 and available in the Clerk of the Court’s case file). Cite as: 571 U. S. ____ (2014) 3 Opinion of the Court ure under federal law: There must be probable cause to think (1) that the defendant has committed an offense permitting forfeiture, and (2) that the property at issue has the requisite connection to that crime. See §853(a). The Monsanto Court, however, declined to consider “whether the Due Process Clause requires a hearing” to establish either or both of those aspects of forfeitability. Id., at 615, n. 10.2 Since Monsanto, the lower courts have generally pro- vided a hearing to any indicted defendant seeking to lift an asset restraint to pay for a lawyer. In that hearing, they have uniformly allowed the defendant to litigate the sec- ond issue stated above: whether probable cause exists to believe that the assets in dispute are traceable or other- wise sufficiently related to the crime charged in the in- dictment.3 But the courts have divided over extending the hearing to the first issue. Some have considered, while others have barred, a defendant’s attempt to challenge the probable cause underlying a criminal charge.4 This case raises the question whether an indicted defendant has a constitutional right to contest the grand jury’s prior de- termination of that matter. —————— 2 The forfeiture statute itself requires a hearing when the Govern- ment seeks to restrain the assets of someone who has not yet been indicted. See 21 U.S. C. §853(e)(1)(B). That statutory provision is not at issue in this case, which involves a pair of indicted defendants. 3 At oral argument, the Government agreed that a defendant has a constitutional right to a hearing on that question. See Tr. of Oral Arg. 45. We do not opine on the matter here. 4 Compare United States v. E-Gold, Ltd., 521 F.3d 411 (CADC 2008) (holding that a defendant is entitled to raise such a challenge); United States v. Dejanu, 37 Fed. Appx. 870, 873 (CA9 2002) (same); United States v. Michelle’s Lounge, 39 F.3d 684, 700 (CA7 1994) (same); United States v. Monsanto, 924 F.2d 1186 (CA2 1991) (en banc) (same), with United States v. Jamieson, 427 F.3d 394, 406–407 (CA6 2005) (prohibiting a defendant from raising such a challenge); United States v. Farmer, 274 F.3d 800, 803–806 (CA4 2001) (same); United States v. Jones, 160 F.3d 641, 648–649 (CA10 1998) (same). 4 KALEY v. UNITED STATES Opinion of the Court B The grand jury’s indictment in this case charges a scheme to steal prescription medical devices and resell them for profit. The indictment accused petitioner Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson, and petitioner Brian Kaley, her husband, with transporting stolen medical devices across state lines and laundering the proceeds of that activity.5 The Kaleys have contested those allegations throughout this litigation, arguing that the medical devices at issue were unwanted, excess hospital inventory, which they could lawfully take and market to others. Immediately after obtaining the indictment, the Gov- ernment sought a restraining order under §853(e)(1) to prevent the Kaleys from transferring any assets traceable to or involved in the alleged offenses. Included among those assets is a $500,000 certificate of deposit that the Kaleys intended to use for legal fees. The District Court entered the requested order. Later, in response to the Kaleys’ motion to vacate the asset restraint, the court denied a request for an evidentiary hearing and confirmed the order, except as to $63,000 that it found (based on the parties’ written submissions) was not connected to the alleged offenses. On interlocutory appeal, the Eleventh Circuit reversed and remanded for further consideration of whether some kind of evidentiary hearing was warranted. See 579 F.3d 1246 (2009). The District Court then concluded that it should hold a hearing, but only as to “whether the re- —————— 5An earlier version of the indictment did not include the money laun- dering charge. In its superseding indictment, the Government also accused Jennifer Gruenstrass, another sales representative, of trans- porting stolen property and money laundering. Her case went to trial, and she was acquitted. Several other sales representatives participat- ing in the Kaleys’ activity entered guilty pleas (each to a charge of shipping stolen goods) during the Government’s investigation. Cite as: 571 U. S. ____ (2014) 5 Opinion of the Court strained assets are traceable to or involved in the alleged criminal conduct.” App. to Pet. for Cert. 43, n. 5. The Kaleys informed the court that they no longer disputed that issue; they wished to show only that the “case against them is ‘baseless.’ ” Id., at 39; see App. 107 (“We are not contesting that the assets restrained were . . . traceable to the conduct. Our quarrel is whether that conduct consti- tutes a crime”). Accordingly, the District Court affirmed the restraining order, and the Kaleys took another appeal. The Eleventh Circuit this time affirmed, holding that the Kaleys were not entitled at a hearing on the asset freeze “to challenge the factual foundation supporting the grand jury’s probable cause determination[ ]”—that is, “the very validity of the underlying indictment.” 677 F.3d 1316, 1317 (2012). We granted certiorari in light of the Circuit split on the question presented, 568 U. S. ___ (2013), and we now affirm the Eleventh Circuit. II This Court has twice considered claims, similar to the Kaleys’, that the Fifth Amendment’s right to due process and the Sixth Amendment’s right to counsel constrain the way the federal forfeiture statute applies to assets needed to retain an attorney. See Caplin & Drysdale, 491 U.S. 617; Monsanto, 491 U.S. 600. We begin with those rul- ings not as mere background, but as something much more. On the single day the Court decided both those cases, it cast the die on this one too. In Caplin & Drysdale, we considered whether the Fifth and Sixth Amendments exempt from forfeiture money that a convicted defendant has agreed to pay his attorney. See 491 U.S., at 623–635. We conceded a factual premise of the constitutional claim made in the case: Sometimes “a defendant will be unable to retain the attorney of his choice,” if he cannot use forfeitable assets. Id., at 625. 6 KALEY v. UNITED STATES Opinion of the Court Still, we held, the defendant’s claim was “untenable.” Id., at 626. “A defendant has no Sixth Amendment right to spend another person’s money” for legal fees—even if that is the only way to hire a preferred lawyer. Ibid. Consider, we submitted, the example of a “robbery suspect” who wishes to “use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended.” Ibid. That money is “not rightfully his.” Ibid. Accordingly, we concluded, the Government does not violate the Constitu- tion if, pursuant to the forfeiture statute, “it seizes the robbery proceeds and refuses to permit the defendant to use them” to pay for his lawyer. Ibid. And then, we confirmed in Monsanto what our “robbery suspect” hypothetical indicated: Even prior to conviction (or trial)—when the presumption of innocence still applies— the Government could constitutionally use §853(e) to freeze assets of an indicted defendant “based on a find- ing of probable cause to believe that the property will ultimately be proved forfeitable.” 491 U.S., at 615. In Monsanto, too, the defendant wanted to use the property at issue to pay a lawyer, and maintained that the Fifth and Sixth Amendments entitled him to do so. We dis- agreed. We first noted that the Government may sometimes “restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.” Id., at 615–616. Given that power, we could find “no constitutional infirmity in §853(e)’s authori- zation of a similar restraint on [the defendant’s] property” in order to protect “the community’s interest” in recover- ing “ill-gotten gains.” Id., at 616. Nor did the defendant’s interest in retaining a lawyer with the disputed assets change the equation. Relying on Caplin & Drysdale, we reasoned: “[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an Cite as: 571 U. S. ____ (2014) 7 Opinion of the Court order barring a defendant from frustrating that end by dissipating his assets prior to trial.” Ibid. So again: With probable cause, a freeze is valid. The Kaleys little dispute that proposition; their argu- ment is instead about who should have the last word as to probable cause. A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that proba- ble cause supports this criminal prosecution (or alterna- tively put, that the prosecution is not “baseless,” as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries. This Court has often recognized the grand jury’s singu- lar role in finding the probable cause necessary to initiate a prosecution for a serious crime. See, e.g., Costello v. United States, 350 U.S. 359, 362 (1956). “[A]n indictment ‘fair upon its face,’ and returned by a ‘properly constituted grand jury,’ ” we have explained, “conclusively determines the existence of probable cause” to believe the defendant perpetrated the offense alleged. Gerstein v. Pugh, 420 U.S. 103, 117, n. 19 (1975) (quoting Ex parte United States, 287 U.S. 241, 250 (1932)). And “conclusively” has meant, case in and case out, just that. We have found no “authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of de- termining whether or not the finding was founded upon sufficient proof.” Costello, 350 U.S., at 362–363 (quoting United States v. Reed, 27 F. Cas. 727, 738 (No. 16,134) (CC 8 KALEY v. UNITED STATES Opinion of the Court NDNY 1852) (Nelson, J.)). To the contrary, “the whole history of the grand jury institution” demonstrates that “a challenge to the reliability or competence of the evidence” supporting a grand jury’s finding of probable cause “will not be heard.” United States v. Williams, 504 U.S. 36, 54 (1992) (quoting Costello, 350 U.S., at 364, and Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988)). The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime. And that inviolable grand jury finding, we have decided, may do more than commence a criminal proceeding (with all the economic, reputational, and personal harm that entails); the determination may also serve the purpose of immediately depriving the accused of her freedom. If the person charged is not yet in custody, an indictment trig- gers “issuance of an arrest warrant without further in- quiry” into the case’s strength. Gerstein, 420 U.S., at 117, n. 19; see Kalina v. Fletcher, 522 U.S. 118, 129 (1997). Alternatively, if the person was arrested without a war- rant, an indictment eliminates her Fourth Amendment right to a prompt judicial assessment of probable cause to support any detention. See Gerstein, 420 U.S., at 114, 117, n. 19. In either situation, this Court—relying on the grand jury’s “historical role of protecting individuals from unjust persecution”—has “let [that body’s] judgment sub- stitute for that of a neutral and detached magistrate.” Ibid. The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.6 —————— 6 The grand jury’s unreviewed finding similarly may play a significant role in determining a defendant’s eligibility for release before trial under the Bail Reform Act of 1984, 18 U.S. C. §3141 et seq. That statute creates a rebuttable presumption that a defendant is ineligible for bail if “there is probable cause to believe” she committed certain serious crimes. §§3142(e)(2)–(3), (f). The Courts of Appeal have uni- Cite as: 571 U. S. ____ (2014) 9 Opinion of the Court The same result follows when, as here, an infringement on the defendant’s property depends on a showing of prob- able cause that she committed a crime. If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough— reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must needs be adequate to impose this one too. Indeed, Monsanto already noted the absence of any reason to hold property seizures to different rules: As described earlier, the Court partly based its adoption of the probable cause standard on the incongruity of subjecting an asset freeze to any stricter requirements than apply to an arrest or ensuing detention. See supra, at 6; 491 U. S., at 615 (“[I]t —————— formly held that presumption to operate whenever an indictment charges those offenses. Relying on our instruction that an indictment returned by a proper grand jury “conclusively determines the existence of probable cause,” the courts have denied defendants’ calls for any judicial reconsideration of that issue. United States v. Contreras, 776 F.2d 51, 54 (CA2 1985) (quoting Gerstein v. Pugh, 420 U.S. 103, 117, n. 19 (1975)); see, e.g., United States v. Suppa, 799 F.2d 115, 117–119 (CA3 1986); United States v. Vargas, 804 F.2d 157, 162–163 (CA1 1986) (per curiam); United States v. Hurtado, 779 F.2d 1467, 1477– 1479 (CA11 1985). The dissent, while conceding this point, notes that courts may con- sider the “weight of the evidence” in deciding whether a defendant has rebutted the presumption. See post, at 9–10, and n. 3 (opinion of ROBERTS, C. J.). And so they may, along with a host of other factors relating to the defendant’s dangerousness or risk of flight. See §3142(g). But that is because the Bail Reform Act so allows—not because (as argued here) the Constitution compels the inquiry. And even that provision of the statute cuts against the dissent’s position, because it enables courts to consider only an evidentiary issue different from the probable cause determination. When it comes to whether probable cause supports a charge—i.e., the issue here—courts making bail determinations are stuck, as all agree, with the grand jury’s finding. 10 KALEY v. UNITED STATES Opinion of the Court would be odd to conclude that the Government may not restrain property” on the showing often sufficient to “re- strain persons”). By similar token, the probable cause standard, once selected, should work no differently for the single purpose of freezing assets than for all others.7 So the longstanding, unvarying rule of criminal procedure we have just described applies here as well: The grand jury’s determination is conclusive. And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is prob- able cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal pro- ceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges,8 the same judge who found probable cause lacking would preside over a —————— 7Contrary to the dissent’s characterization, see post, at 11–12, noth- ing in our reasoning depends on viewing one consequence of a probable cause determination (say, detention) as “greater” than another (say, the asset freeze here). (We suspect that would vary from case to case, with some defendants seeing the loss of liberty as the more significant deprivation and others the loss of a chosen lawyer.) We simply see no reason to treat a grand jury’s probable cause determination as conclu- sive for all other purposes (including, in some circumstances, locking up the defendant), but not for the one at issue here. 8A prosecutor, of course, might drop the case because of the court’s ruling, especially if he thought that decision would bring into play an ethical standard barring any charge “that the prosecutor knows is not supported by probable cause.” ABA Model Rule of Professional Conduct 3.8(a) (2013). But then the court would have effectively done what we have long held it cannot: overrule the grand jury on whether to bring a defendant to trial. See supra, at 7–8. Cite as: 571 U. S. ____ (2014) 11 Opinion of the Court trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system’s integrity—and especially the grand jury’s integral, constitutionally prescribed role. For in this new world, every prosecution involving a pre-trial asset freeze would potentially pit the judge against the grand jury as to the case’s foundational issue.9 The Kaleys counter (as does the dissent, post, at 7) that apparently inconsistent findings are not really so, because the prosecutor could have presented scantier evidence to the judge than he previously offered the grand jury. Sup- pose, for example, that at the judicial hearing the prosecu- tor put on only “one witness instead of all five”; then, the Kaleys maintain, the judge’s decision of no probable cause would mean only that “the Government did not satisfy its burden[ ] on that one day in time.” Tr. of Oral Arg. 12, 18; see Reply Brief 11–12. But we do not think that hypothet- ical solves the problem. As an initial matter, it does not foreclose a different fact pattern: A judge could hear the exact same evidence as the grand jury, yet respond to it differently, thus rendering what even the Kaleys must concede is a contradictory finding. And when the Kaleys’ hypothetical is true, just what does it show? Consider that the prosecutor in their example has left home some of the witnesses he took to the grand jury—presumably because, as we later discuss, he does not yet wish to reveal their identities or likely testimony. See infra, at 14–15. The —————— 9 The dissent argues that the same is true when a judge hears evi- dence on whether frozen assets are traceable to a crime, because that allegation also appears in the indictment. See post, at 6–7; supra, at 3, and n. 3. But the tracing of assets is a technical matter far removed from the grand jury’s core competence and traditional function—to determine whether there is probable cause to think the defendant committed a crime. And a judge’s finding that assets are not traceable to the crime charged in no way casts doubt on the prosecution itself. So that determination does not similarly undermine the grand jury or create internal contradictions within the criminal justice system. 12 KALEY v. UNITED STATES Opinion of the Court judge’s ruling of no probable cause therefore would not mean that the grand jury was wrong: As the Kaleys con- cede, the grand jury could have heard more than enough evidence to find probable cause that they committed the crimes charged. The Kaleys would win at the later hear- ing despite, not because of, the case’s true merits. And we would then see still less reason for a judge to topple the grand jury’s (better supported) finding of probable cause.10 Our reasoning so far is straightforward. We held in Monsanto that the probable cause standard governs the pre-trial seizure of forfeitable assets, even when they are needed to hire a lawyer. And we have repeatedly affirmed a corollary of that standard: A defendant has no right to judicial review of a grand jury's determination of probable cause to think a defendant committed a crime. In combi- nation, those settled propositions signal defeat for the Kaleys because, in contesting the seizure of their property, they seek only to relitigate such a grand jury finding. III The Kaleys would have us undertake a different analy- sis, which they contend would lead to a different conclu- sion. They urge us to apply the balancing test of Mathews v. Eldridge, 424 U.S. 319 (1976), to assess whether they have received a constitutionally sufficient opportunity to challenge the seizure of their assets. See Brief for Peti- tioners 32–64. Under that three-pronged test (reordered —————— 10 The dissent claims as well that the hearing the Kaleys seek “would not be mere relitigation” of the grand jury’s decision because they could now “tell their side of the story.” Post, at 8. But the same could be said of an adversarial hearing on an indictment’s validity, which everyone agrees is impermissible because it “look[s] into and revise[s]” the grand jury’s judgment. See ibid. (quoting Costello v. United States, 350 U.S. 359, 362 (1956)). The lesson of our precedents, as described above, is that a grand jury’s finding is “conclusive”—and thus precludes subse- quent proceedings on the same matter—even though not arising from adversarial testing. See supra, at 7–8; see also infra, at 17–18. Cite as: 571 U. S. ____ (2014) 13 Opinion of the Court here for expositional purposes), a court must weigh (1) the burdens that a requested procedure would impose on the Government against (2) the private interest at stake, as viewed alongside (3) “the risk of an erroneous deprivation” of that interest without the procedure and “the probable value, if any, of [the] additional . . . procedural safe- guard[ ].” Mathews, 424 U.S., at 335. Stressing the importance of their interest in retaining chosen counsel, the Kaleys argue that the Mathews balance tilts hard in their favor. It thus overrides—or so the Kaleys claim— all we have previously held about the finality of grand jury findings, entitling them to an evidentiary hearing be- fore a judge to contest the probable cause underlying the indictment. The Government battles with the Kaleys over whether Mathews has any application to this case. This Court devised the test, the Government notes, in an administra- tive setting—to decide whether a Social Security recipient was entitled to a hearing before her benefits were termi- nated. And although the Court has since employed the approach in other contexts, the Government reads Medina v. California, 505 U.S. 437 (1992), as foreclosing its use here. In that case, we held that “the Mathews balancing test does not provide the appropriate framework for as- sessing the validity of state procedural rules which . . . are part of the criminal process,” reasoning that because the “Bill of Rights speaks in explicit terms to many aspects of criminal procedure,” the Due Process Clause “has limited operation” in the field. Id., at 443. That settles that, asserts the Government. See Brief for United States 18. But the Kaleys argue that Medina addressed a State’s procedural rule and relied on federalism principles not implicated here. Further, they claim that Medina con- cerned a criminal proceeding proper, not a collateral ac- tion seizing property. See Reply Brief 1–5. As to that sort of action, the Kaleys contend, Mathews should govern. 14 KALEY v. UNITED STATES Opinion of the Court We decline to address those arguments, or to define the respective reach of Mathews and Medina, because we need not do so. Even if Mathews applied here—even if, that is, its balancing inquiry were capable of trumping this Court’s repeated admonitions that the grand jury’s word is conclusive—the Kaleys still would not be entitled to the hearing they seek. That is because the Mathews test tips against them, and so only reinforces what we have already said. As we will explain, the problem for the Kaleys comes from Mathews’ prescribed inquiry into the requested procedure’s usefulness in correcting erroneous depriva- tions of their private interest. In light of Monsanto’s holding that a seizure of the Kaleys’ property is erroneous only if unsupported by probable cause, the added proce- dure demanded here is not sufficiently likely to make any difference. To begin the Mathews analysis, the Government has a substantial interest in freezing potentially forfeitable assets without an evidentiary hearing about the probable cause underlying criminal charges. At the least, such an adversarial proceeding—think of it as a pre-trial mini-trial (or maybe a pre-trial not-so-mini-trial)—could consume significant prosecutorial time and resources. The hearing presumably would rehearse the case’s merits, including the Government’s theory and supporting evidence. And the Government also might have to litigate a range of ancillary questions relating to the conduct of the hearing itself (for example, could the Kaleys subpoena witnesses or exclude certain evidence?). Still more seriously, requiring a proceeding of that kind could undermine the Government’s ability either to obtain a conviction or to preserve forfeitable property. To ensure a favorable result at the hearing, the Government could choose to disclose all its witnesses and other evidence. But that would give the defendant knowledge of the Gov- ernment’s case and strategy well before the rules of crimi- Cite as: 571 U. S. ____ (2014) 15 Opinion of the Court nal procedure—or principles of due process, see, e.g., Brady v. Maryland, 373 U.S. 83 (1963)—would otherwise require. See Fed. Rules Crim. Proc. 26.2(a), 16(a)(2); Weatherford v. Bursey, 429 U.S. 545, 559–561 (1977) (“There is no general constitutional right to discovery in a criminal case”). And sometimes (particularly in organized crime and drug trafficking prosecutions, in which forfeit- ure questions often arise), that sneak preview might not just aid the defendant’s preparations but also facilitate witness tampering or jeopardize witness safety. Alterna- tively, to ensure the success of its prosecution, the Gov- ernment could hold back some of its evidence at the hear- ing or give up on the pre-trial seizure entirely. But if the Government took that tack, it would diminish the likeli- hood of ultimately recovering stolen assets to which the public is entitled.11 So any defense counsel worth his salt—whatever the merits of his case—would put the prosecutor to a choice: “Protect your forfeiture by provid- ing discovery” or “protect your conviction by surrendering the assets.”12 It is small wonder that the Government —————— 11 The dissent says not to worry—the Government can obtain the assets after conviction by using 21 U.S. C. §853(c)’s “relation-back” provision. See post, at 15. That provision is intended to aid the Gov- ernment in recovering funds transferred to a third party—here, the Kaleys’ lawyer—subsequent to the crime. But forfeiture applies only to specific assets, so in the likely event that the third party has spent the money, the Government must resort to a State’s equitable remedies— which may or may not even be available—to force him to disgorge an equivalent amount. See Tr. of Oral Arg. 48–49. And indeed, if the Government could easily recover such monies, then few lawyers would agree to represent defendants like the Kaleys, and the dissent’s pro- posed holding would be for naught. 12 Compare Cassella, Criminal Forfeiture Procedure, 32 Am. J. Crim. L. 55, 63 (2004) (explaining that “defendants tend to demand the hearing . . . to afford defense counsel an early opportunity to discover the nature of the Government’s criminal case and to cross-examine some of the Government’s witnesses”) with May, Attorney Fees and Government Forfeiture, 34 Champion 20, 23 (Apr. 2010) (advising that 16 KALEY v. UNITED STATES Opinion of the Court wants to avoid that lose-lose dilemma. For their part, however, defendants like the Kaleys have a vital interest at stake: the constitutional right to retain counsel of their own choosing. See Wheat v. United States, 486 U.S. 153, 159 (1988) (describing the scope of, and various limits on, that right). This Court has recently described that right, separate and apart from the guaran- tee to effective representation, as “the root meaning” of the Sixth Amendment. United States v. Gonzalez-Lopez, 548 U.S. 140, 147–148 (2006); cf. Powell v. Alabama, 287 U.S. 45, 53 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”).13 Indeed, we have held that the wrongful deprivation of choice of counsel is “structural error,” immune from review for harmlessness, because it “pervades the entire trial.” Gonzalez-Lopez, 548 U.S., at 150. Different lawyers do all kinds of things differently, sometimes “affect[ing] whether and on what terms the defendant . . . plea bargains, or decides instead to go to trial”—and if the latter, possibly affecting whether she gets convicted or what sentence she receives. Ibid. So for defendants like the Kaleys, having —————— “[e]ven if defense counsel cannot prevail on the facts or the law, he may be able to prevail anyway” because “[s]ometimes the government will decide to give up its restraint on a piece of property rather than engage in litigation that will result in early discovery”). 13 Still, a restraint on assets could not deprive the Kaleys of represen- tation sufficient to ensure fair proceedings. The Sixth Amendment would require the appointment of effective counsel if the Kaleys were unable to hire a lawyer. See Strickland v. Washington, 466 U.S. 668 (1984); Gideon v. Wainwright, 372 U.S. 335 (1963). The vast majority of criminal defendants proceed with appointed counsel. And the Court has never thought, as the dissent suggests today, that doing so risks the “fundamental fairness of the actual trial.” Post, at 12; see post, at 17–18. If it does, the right way to start correcting the problem is not by adopting the dissent’s position, but by ensuring that the right to effec- tive counsel is fully vindicated. Cite as: 571 U. S. ____ (2014) 17 Opinion of the Court the ability to retain the “counsel [they] believe[ ] to be best”—and who might in fact be superior to any existing alternatives—matters profoundly. Id., at 146. And yet Monsanto held, crucially for the last part of our Mathews analysis, that an asset freeze depriving a defend- ant of that interest is erroneous only when unsupported by a finding of probable cause. Recall that Monsanto considered a case just like this one, where the defendant wanted to use his property to pay his preferred lawyer. He urged the Court to hold that the Government could seize assets needed for that purpose only after conviction. But we instead decided that the Government could act “after probable cause [that the assets are forfeitable] is adequately established.” 491 U.S., at 616. And that means in a case like this one—where the assets’ connec- tion to the allegedly illegal conduct is not in dispute, see supra, at 5—that a pre-trial seizure is wrongful only when there is no probable cause to believe the defendants com- mitted the crimes charged. Or to put the same point differently, such a freeze is erroneous—notwithstanding the weighty burden it imposes on the defendants’ ability to hire a chosen lawyer—only when the grand jury should never have issued the indictment. The Mathews test’s remaining prong—critical when the governmental and private interests both have weight— thus boils down to the “probable value, if any,” of a judicial hearing in uncovering mistaken grand jury findings of probable cause. 424 U.S., at 335. The Kaleys (and the dissent) contend that such proceedings will serve an im- portant remedial function because grand juries hear only a “one-sided presentation[ ]” of evidence. Brief for Petition- ers 57; see post, at 16. And that argument rests on a generally sound premise: that the adversarial process leads to better, more accurate decision-making. But in this context—when the legal standard is merely probable cause and the grand jury has already made that finding— 18 KALEY v. UNITED STATES Opinion of the Court both our precedents and other courts’ experience indicate that a full-dress hearing will provide little benefit. This Court has repeatedly declined to require the use of adversarial procedures to make probable cause determina- tions. Probable cause, we have often told litigants, is not a high bar: It requires only the “kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal techni- cians, act.’ ” Florida v. Harris, 568 U. S. __, __ (2013) (slip op., at 5) (quoting Illinois v. Gates, 462 U.S. 213, 231, 238 (1983)); see Gerstein, 420 U.S., at 121 (contrasting proba- ble cause to reasonable-doubt and preponderance stand- ards). That is why a grand jury’s finding of probable cause to think that a person committed a crime “can be [made] reliably without an adversary hearing,” id., at 120; it is and “has always been thought sufficient to hear only the prosecutor’s side,” United States v. Williams, 504 U.S. 36, 51 (1992). So, for example, we have held the “confronta- tion and cross-examination” of witnesses unnecessary in a grand jury proceeding. Gerstein, 420 U.S., at 121–122. Similarly, we have declined to require the presentation of exculpatory evidence, see Williams, 504 U.S., at 51, and we have allowed the introduction of hearsay alone, see Costello, 350 U.S., at 362–364. On each occasion, we relied on the same reasoning, stemming from our recogni- tion that probable cause served only a gateway function: Given the relatively undemanding “nature of the determi- nation,” the value of requiring any additional “formalities and safeguards” would “[i]n most cases . . . be too slight.” Gerstein, 420 U.S., at 121–122. We can come out no differently here. The probable cause determinations the Kaleys contest are simply those underlying the charges in the indictment. No doubt the Kaleys could seek to poke holes in the evidence the Gov- ernment offered the grand jury to support those allega- tions. No doubt, too, the Kaleys could present evidence of their own, which might cast the Government’s in a differ- Cite as: 571 U. S. ____ (2014) 19 Opinion of the Court ent light. (Presumably, the Kaleys would try in those two ways to show that they did not steal, but instead lawfully obtained the medical devices they later resold. See supra, at 4.) Our criminal justice system of course relies on such contestation at trial when the question becomes whether a defendant is guilty beyond peradventure. But as we have held before, an adversarial process is far less useful to the threshold finding of probable cause, which determines only whether adequate grounds exist to proceed to trial and reach that question. The probable cause decision, by its nature, is hard to undermine, and still harder to re- verse. So the likelihood that a judge holding an eviden- tiary hearing will repudiate the grand jury’s decision strikes us, once more, as “too slight” to support a constitu- tional requirement. Gerstein, 420 U.S., at 122. The evidence from other courts corroborates that view, over and over and over again. In the past two decades, the courts in several Circuits have routinely held the kind of hearing the Kaleys seek. See supra, at 3, and n. 4. Yet neither the Kaleys nor their amici (mostly lawyers’ associ- ations) have found a single case in which a judge found an absence of probable cause to believe that an indicted de- fendant committed the crime charged. One amicus cites 25 reported cases involving pre-trial hearings on asset freezes. See Brief for New York Council of Defense Law- yers 4, n. 2. In 24 of those, the defendant lost outright. The last involved a not-yet-indicted defendant (so no grand jury finding); there, the District Court’s ruling for him was reversed on appeal. See Tr. of Oral Arg. 15, 36. To be sure, a kind of selection bias might affect those statistics: Perhaps a prosecutor with a very weak case would choose to abandon an asset freeze rather than face a difficult hearing. See id., at 16, 37. But the Kaleys and their amici have also failed to offer any anecdotes of that kind; and we suspect that the far more common reason a prosecutor relinquishes a freeze is just to avoid premature 20 KALEY v. UNITED STATES Opinion of the Court discovery. See supra, at 14–15. So experience, as far as anyone has discerned it, cuts against the Kaleys: It con- firms that even under Mathews, they have no right to revisit the grand jury’s finding.14 IV When we decided Monsanto, we effectively resolved this case too. If the question in a pre-trial forfeiture case is whether there is probable cause to think the defendant committed the crime alleged, then the answer is: whatever the grand jury decides. And even if we test that proposi- tion by applying Mathews, we arrive at the same place: In considering such findings of probable cause, we have never thought the value of enhanced evidentiary procedures worth their costs. Congress of course may strike its own balance and give defendants like the Kaleys the kind of hearing they want. Indeed, Congress could disapprove of Monsanto itself and hold pre-trial seizures of property to a higher standard than probable cause. But the Due Pro- —————— 14 As against all this—all we have formerly held and all other courts have actually found—the dissent cites nothing: not a single decision of ours suggesting, nor a single decision of a lower court demonstrating, that formal, adversarial procedures are at all likely to correct any grand jury errors. The dissent argues only that a hearing will have “probable value” for the Kaleys because “the deprivation of [their] right” to chosen counsel, once accomplished, is “effectively permanent.” Post, at 16. But that argument confuses two different parts of the Mathews inquiry. The dissent’s point well underscores the importance of the Kaleys’ interest: As we have readily acknowledged, if the grand jury made a mistake, the Kaleys have suffered a serious injury, which cannot later be corrected. See supra, at 16–17. (We note, though, that the dissent, in asserting that injury’s uniqueness, understates the losses that always attend a mistaken indictment, which no ultimate verdict can erase.) But the dissent’s argument about what is at stake for the Kaleys says nothing about the crucial, last prong of Mathews, which asks whether and to what extent the adversarial procedures they request will in fact correct any grand jury errors. That part of the analysis is what requires our decision, and the dissent’s view that the Government overreached in this particular case cannot overcome it. Cite as: 571 U. S. ____ (2014) 21 Opinion of the Court cess Clause, even when combined with a defendant’s Sixth Amendment interests, does not command those results. Accordingly, the Kaleys cannot challenge the grand jury’s conclusion that probable cause supports the charges against them. The grand jury gets the final word. We therefore affirm the judgment of the Eleventh Cir- cuit and remand the case for further proceedings con- sistent with this opinion. It is so ordered. Cite as: 571 U. S. ____ (2014) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–464 _________________ KERRI L. KALEY, ET VIR, PETITIONERS v.

A federal statute, 21 U.S. C. authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer. In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the sei- zure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determi- nation of probable cause to they committed the crimes charged. We hold that they have no right to reliti- gate that finding. 2 KALEY v. UNITED STATES Opinion of the Court I A Criminal forfeitures are imposed upon conviction to confiscate assets used in or gained from certain serious crimes. See 21 U.S. C. Forfeitures help to en- sure that crime does not pay: They at once punish wrong- doing, deter future illegality, and “lessen the economic power” of criminal enterprises. Caplin & Drysdale, Char- ; see at 634 (“Forfeiture provisions are powerful weapons in the war on crime”). The Government also uses forfeited prop- erty to recompense victims of crime, improve conditions in crime-damaged communities, and support law enforce- ment activities like police training. See 29–.1 Accordingly, “there is a strong governmental interest in obtaining full recovery of all forfeitable assets.” at 631. In line with that interest, empowers courts to enter pre-trial restraining orders or injunctions to “pre- serve the availability of [forfeitable] property” while crim- inal proceedings are pending. Such an order, issued “[u]pon application of the United States,” prevents a de- fendant from spending or transferring specified property, including to pay an attorney for legal services. In Monsanto, our principal case involving this procedure, we held a pre-trial asset restraint constitutionally permissible whenever there is probable cause to that the property is forfeitable. See 491 U.S., at That determination has two parts, reflecting the requirements for forfeit- —————— 1 Between January 2012 and April 2013, for example, the Department of Justice returned over $1.5 billion in forfeited assets to more than 400,000 crime victims. See Dept. of Justice, Justice Department Returned $1.5 Billion to Victims of Crime Since January 2012 (Apr. 26, 2013), online at http://www.justice.gov/opa/pr/2013/April/13-crm- 480.html (as visited Feb. 21, 2014 and available in the Clerk of the Court’s case file). Cite as: 571 U. S. (2014) 3 Opinion of the Court ure under federal law: There must be probable cause to think (1) that the defendant has committed an offense permitting forfeiture, and (2) that the property at issue has the requisite connection to that crime. See The Monsanto Court, however, declined to consider “whether the Due Process Clause requires a hearing” to establish either or both of those aspects of forfeitability. at n. 10.2 Since Monsanto, the lower courts have generally pro- vided a hearing to any indicted defendant seeking to lift an asset restraint to pay for a lawyer. In that hearing, they have uniformly allowed the defendant to litigate the sec- ond issue stated above: whether probable cause exists to that the assets in dispute are traceable or other- wise sufficiently related to the crime charged in the in- dictment.3 But the courts have divided over extending the hearing to the first issue. Some have considered, while others have barred, a defendant’s attempt to challenge the probable cause underlying a criminal charge.4 This case raises the question whether an indicted defendant has a constitutional right to contest the grand jury’s prior de- termination of that matter. —————— 2 The forfeiture statute itself requires a hearing when the Govern- ment seeks to restrain the assets of someone who has not yet been indicted. See 21 U.S. C. (B). That statutory provision is not at issue in this case, which involves a pair of indicted defendants. 3 At oral argument, the Government agreed that a defendant has a constitutional right to a hearing on that question. See Tr. of Oral Arg. 45. We do not opine on the matter here. 4 Compare United (holding that a defendant is entitled to raise such a challenge); United ; United ; United with United (prohibiting a defendant from raising such a challenge); United States v. Farmer, ; United States v. Jones, 4 KALEY v. UNITED STATES Opinion of the Court B The grand jury’s indictment in this case charges a scheme to steal prescription medical devices and resell them for profit. The indictment accused petitioner Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson, and petitioner Brian Kaley, her husband, with transporting stolen medical devices across state lines and laundering the proceeds of that activity.5 The Kaleys have contested those allegations throughout this litigation, arguing that the medical devices at issue were unwanted, excess hospital inventory, which they could lawfully take and market to others. Immediately after obtaining the indictment, the Gov- ernment sought a restraining order under to prevent the Kaleys from transferring any assets traceable to or involved in the alleged offenses. Included among those assets is a $500,000 certificate of deposit that the Kaleys intended to use for legal fees. The District Court entered the requested order. Later, in response to the Kaleys’ motion to vacate the asset restraint, the court denied a request for an evidentiary hearing and confirmed the order, except as to $63,000 that it found (based on the parties’ written submissions) was not connected to the alleged offenses. On interlocutory appeal, the Eleventh Circuit reversed and remanded for further consideration of whether some kind of evidentiary hearing was warranted. See 579 F.3d 1246 (2009). The District Court then concluded that it should hold a hearing, but only as to “whether the re- —————— 5An earlier version of the indictment did not include the money laun- dering charge. In its superseding indictment, the Government also accused Jennifer Gruenstrass, another sales representative, of trans- porting stolen property and money laundering. Her case went to trial, and she was acquitted. Several other sales representatives participat- ing in the Kaleys’ activity entered guilty pleas (each to a charge of shipping stolen goods) during the Government’s investigation. Cite as: 571 U. S. (2014) 5 Opinion of the Court strained assets are traceable to or involved in the alleged criminal conduct.” App. to Pet. for Cert. 43, n. 5. The Kaleys informed the court that they no longer disputed that issue; they wished to show only that the “case against them is ‘baseless.’ ” ; see App. 107 (“We are not contesting that the assets restrained were traceable to the conduct. Our quarrel is whether that conduct consti- tutes a crime”). Accordingly, the District Court affirmed the restraining order, and the Kaleys took another appeal. The Eleventh Circuit this time affirmed, holding that the Kaleys were not entitled at a hearing on the asset freeze “to challenge the factual foundation supporting the grand jury’s probable cause determination[ ]”—that is, “the very validity of the underlying indictment.” 1317 (2012). We granted certiorari in light of the Circuit split on the question presented, 568 U. S. (2013), and we now affirm the Eleventh Circuit. II This Court has twice considered claims, similar to the Kaleys’, that the Fifth Amendment’s right to due process and the Sixth Amendment’s right to counsel constrain the way the federal forfeiture statute applies to assets needed to retain an attorney. See Caplin & Drysdale, 491 U.S. 617; Monsanto, We begin with those rul- ings not as mere background, but as something much more. On the single day the Court decided both those cases, it cast the die on this one too. In Caplin & Drysdale, we considered whether the Fifth and Sixth Amendments exempt from forfeiture money that a convicted defendant has agreed to pay his attorney. See –635. We conceded a factual premise of the constitutional claim made in the case: Sometimes “a defendant will be unable to retain the attorney of his choice,” if he cannot use forfeitable assets. 6 KALEY v. UNITED STATES Opinion of the Court Still, we held, the defendant’s claim was “untenable.” 26. “A defendant has no Sixth Amendment right to spend another person’s money” for legal fees—even if that is the only way to hire a preferred lawyer. Consider, we submitted, the example of a “robbery suspect” who wishes to “use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended.” That money is “not rightfully his.” Accordingly, we concluded, the Government does not violate the Constitu- tion if, pursuant to the forfeiture statute, “it seizes the robbery proceeds and refuses to permit the defendant to use them” to pay for his lawyer. And then, we confirmed in Monsanto what our “robbery suspect” hypothetical indicated: Even prior to conviction (or trial)—when the presumption of innocence still applies— the Government could constitutionally use to freeze assets of an indicted defendant “based on a find- ing of probable cause to that the property will ultimately be proved forfeitable.” 491 U.S., at In Monsanto, too, the defendant wanted to use the property at issue to pay a lawyer, and maintained that the Fifth and Sixth Amendments entitled him to do so. We dis- agreed. We first noted that the Government may sometimes “restrain persons where there is a finding of probable cause to that the accused has committed a serious offense.” at –616. Given that power, we could find “no constitutional infirmity in ’s authori- zation of a similar restraint on [the defendant’s] property” in order to protect “the community’s interest” in recover- ing “ill-gotten gains.” Nor did the defendant’s interest in retaining a lawyer with the disputed assets change the equation. Relying on Caplin & Drysdale, we reasoned: “[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an Cite as: 571 U. S. (2014) 7 Opinion of the Court order barring a defendant from frustrating that end by dissipating his assets prior to trial.” So again: With probable cause, a freeze is valid. The Kaleys little dispute that proposition; their argu- ment is instead about who should have the last word as to probable A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that proba- ble cause supports this criminal prosecution (or alterna- tively put, that the prosecution is not “baseless,” as the Kaleys ). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries. This Court has often recognized the grand jury’s singu- lar role in finding the probable cause necessary to initiate a prosecution for a serious crime. See, e.g., v. United States, “[A]n indictment ‘fair upon its face,’ and returned by a ‘properly constituted grand jury,’ ” we have explained, “conclusively determines the existence of probable cause” to the defendant perpetrated the offense alleged. v. Pugh, 420 U.S. 103, n. 19 (1975) ). And “conclusively” has meant, case in and case out, just that. We have found no “authority for looking into and revising the judgment of the grand jury upon the evidence, for the purpose of de- termining whether or not the finding was founded upon sufficient proof.” 350 U.S., at –363 (quoting United (No. 16,134) (CC 8 KALEY v. UNITED STATES Opinion of the Court NDNY 1852) (Nelson, J.)). To the contrary, “the whole history of the grand jury institution” demonstrates that “a challenge to the reliability or competence of the evidence” supporting a grand jury’s finding of probable cause “will not be heard.” United ). The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime. And that inviolable grand jury finding, we have decided, may do more than commence a criminal proceeding (with all the economic, reputational, and personal harm that entails); the determination may also serve the purpose of immediately depriving the accused of her freedom. If the person charged is not yet in custody, an indictment trig- gers “issuance of an arrest warrant without further in- quiry” into the case’s strength. n. 19; see Alternatively, if the person was arrested without a war- rant, an indictment eliminates her Fourth Amendment right to a prompt judicial assessment of probable cause to support any detention. See n. 19. In either situation, this Court—relying on the grand jury’s “historical role of protecting individuals from unjust persecution”—has “let [that body’s] judgment sub- stitute for that of a neutral and detached magistrate.” The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.6 —————— 6 The grand jury’s unreviewed finding similarly may play a significant role in determining a defendant’s eligibility for release before trial under the Bail Reform Act of 1984, 18 U.S. C. et seq. That statute creates a rebuttable presumption that a defendant is ineligible for bail if “there is probable cause to ” she committed certain serious crimes. (f). The Courts of Appeal have uni- Cite as: 571 U. S. (2014) 9 Opinion of the Court The same result follows when, as here, an infringement on the defendant’s property depends on a showing of prob- able cause that she committed a crime. If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough— reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must needs be adequate to impose this one too. Indeed, Monsanto already noted the absence of any reason to hold property seizures to different rules: As described earlier, the Court partly based its adoption of the probable cause standard on the incongruity of subjecting an asset freeze to any stricter requirements than apply to an arrest or ensuing detention. See ; 491 U. S., at (“[I]t —————— formly held that presumption to operate whenever an indictment charges those offenses. Relying on our instruction that an indictment returned by a proper grand jury “conclusively determines the existence of probable cause,” the courts have denied defendants’ calls for any judicial reconsideration of that issue. United States v. Contreras, 776 F.2d 51, (CA2 1985) (quoting v. Pugh, n. 19 (1975)); see, e.g., United –119 (CA3 1986); United 162–163 (CA1 1986) (per curiam); United 1477– 1479 (CA11 1985). The dissent, while conceding this point, notes that courts may con- sider the “weight of the evidence” in deciding whether a defendant has rebutted the presumption. See post, at 9–10, and n. 3 (opinion of ROBERTS, C. J.). And so they may, along with a host of other factors relating to the defendant’s dangerousness or risk of flight. See But that is because the Bail Reform Act so allows—not because (as argued here) the Constitution compels the inquiry. And even that provision of the statute cuts against the dissent’s position, because it enables courts to consider only an evidentiary issue different from the probable cause determination. When it comes to whether probable cause supports a charge—i.e., the issue here—courts making bail determinations are stuck, as all agree, with the grand jury’s finding. 10 KALEY v. UNITED STATES Opinion of the Court would be odd to conclude that the Government may not restrain property” on the showing often sufficient to “re- strain persons”). By similar token, the probable cause standard, once selected, should work no differently for the single purpose of freezing assets than for all others.7 So the longstanding, unvarying rule of criminal procedure we have just described applies here as well: The grand jury’s determination is conclusive. And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is prob- able cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal pro- ceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges,8 the same judge who found probable cause lacking would preside over a —————— 7Contrary to the dissent’s characterization, see post, at 11–12, noth- ing in our reasoning depends on viewing one consequence of a probable cause determination (say, detention) as “greater” than another (say, the asset freeze here). (We suspect that would vary from case to case, with some defendants seeing the loss of liberty as the more significant deprivation and others the loss of a chosen lawyer.) We simply see no reason to treat a grand jury’s probable cause determination as conclu- sive for all other purposes (including, in some circumstances, locking up the defendant), but not for the one at issue here. 8A prosecutor, of course, might drop the case because of the court’s ruling, especially if he thought that decision would bring into play an ethical standard barring any charge “that the prosecutor knows is not supported by probable ” ABA Model Rule of Professional Conduct 3.8(a) (2013). But then the court would have effectively done what we have long held it cannot: overrule the grand jury on whether to bring a defendant to trial. See at 7–8. Cite as: 571 U. S. (2014) 11 Opinion of the Court trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system’s integrity—and especially the grand jury’s integral, constitutionally prescribed role. For in this new world, every prosecution involving a pre-trial asset freeze would potentially pit the judge against the grand jury as to the case’s foundational issue.9 The Kaleys counter (as does the dissent, post, at 7) that apparently inconsistent findings are not really so, because the prosecutor could have presented scantier evidence to the judge than he previously offered the grand jury. Sup- pose, for example, that at the judicial hearing the prosecu- tor put on only “one witness instead of all five”; then, the Kaleys maintain, the judge’s decision of no probable cause would mean only that “the Government did not satisfy its burden[ ] on that one day in time.” Tr. of Oral Arg. 12, 18; see Reply Brief 11–12. But we do not think that hypothet- ical solves the problem. As an initial matter, it does not foreclose a different fact pattern: A judge could hear the exact same evidence as the grand jury, yet respond to it differently, thus rendering what even the Kaleys must concede is a contradictory finding. And when the Kaleys’ hypothetical is true, just what does it show? Consider that the prosecutor in their example has left home some of the witnesses he took to the grand jury—presumably because, as we later discuss, he does not yet wish to reveal their identities or likely testimony. See infra, at 14–15. The —————— 9 The dissent argues that the same is true when a judge hears evi- dence on whether frozen assets are traceable to a crime, because that allegation also appears in the indictment. See post, –7; and n. 3. But the tracing of assets is a technical matter far removed from the grand jury’s core competence and traditional function—to determine whether there is probable cause to think the defendant committed a crime. And a judge’s finding that assets are not traceable to the crime charged in no way casts doubt on the prosecution itself. So that determination does not similarly undermine the grand jury or create internal contradictions within the criminal justice system. 12 KALEY v. UNITED STATES Opinion of the Court judge’s ruling of no probable cause therefore would not mean that the grand jury was wrong: As the Kaleys con- cede, the grand jury could have heard more than enough evidence to find probable cause that they committed the crimes charged. The Kaleys would win at the later hear- ing despite, not because of, the case’s true merits. And we would then see still less reason for a judge to topple the grand jury’s (better supported) finding of probable 10 Our reasoning so far is straightforward. We held in Monsanto that the probable cause standard governs the pre-trial seizure of forfeitable assets, even when they are needed to hire a lawyer. And we have repeatedly affirmed a corollary of that standard: A defendant has no right to judicial review of a grand jury's determination of probable cause to think a defendant committed a crime. In combi- nation, those settled propositions signal defeat for the Kaleys because, in contesting the seizure of their property, they seek only to relitigate such a grand jury finding. III The Kaleys would have us undertake a different analy- sis, which they contend would lead to a different conclu- sion. They urge us to apply the balancing test of v. Eldridge, to assess whether they have received a constitutionally sufficient opportunity to challenge the seizure of their assets. See Brief for Peti- tioners 32–64. Under that three-pronged test ). The lesson of our precedents, as described above, is that a grand jury’s finding is “conclusive”—and thus precludes subse- quent proceedings on the same matter—even though not arising from adversarial testing. See at 7–8; see also infra, at 17–18. Cite as: 571 U. S. (2014) 13 Opinion of the Court here for expositional purposes), a court must weigh (1) the burdens that a requested procedure would impose on the Government against (2) the private interest at stake, as viewed alongside (3) “the risk of an erroneous deprivation” of that interest without the procedure and “the probable value, if any, of [the] additional procedural safe- guard[ ].” 424 U.S., 35. Stressing the importance of their interest in retaining chosen counsel, the Kaleys argue that the balance tilts hard in their favor. It thus overrides—or so the Kaleys claim— all we have previously held about the finality of grand jury findings, entitling them to an evidentiary hearing be- fore a judge to contest the probable cause underlying the indictment. The Government battles with the Kaleys over whether has any application to this case. This Court devised the test, the Government notes, in an administra- tive setting—to decide whether a Social Security recipient was entitled to a hearing before her benefits were termi- nated. And although the Court has since employed the approach in other contexts, the Government reads Medina v. California, as foreclosing its use here. In that case, we held that “the balancing test does not provide the appropriate framework for as- sessing the validity of state procedural rules which are part of the criminal process,” reasoning that because the “Bill of Rights speaks in explicit terms to many aspects of criminal procedure,” the Due Process Clause “has limited operation” in the field. That settles that, asserts the Government. See Brief for United States 18. But the Kaleys argue that Medina addressed a State’s procedural rule and relied on federalism principles not implicated here. Further, they claim that Medina con- cerned a criminal proceeding proper, not a collateral ac- tion seizing property. See Reply Brief 1–5. As to that sort of action, the Kaleys contend, should govern. 14 KALEY v. UNITED STATES Opinion of the Court We decline to address those arguments, or to define the respective reach of and Medina, because we need not do so. Even if applied here—even if, that is, its balancing inquiry were capable of trumping this Court’s repeated admonitions that the grand jury’s word is conclusive—the Kaleys still would not be entitled to the hearing they seek. That is because the test tips against them, and so only reinforces what we have already said. As we will explain, the problem for the Kaleys comes from ’ prescribed inquiry into the requested procedure’s usefulness in correcting erroneous depriva- tions of their private interest. In light of Monsanto’s holding that a seizure of the Kaleys’ property is erroneous only if unsupported by probable cause, the added proce- dure demanded here is not sufficiently likely to make any difference. To begin the analysis, the Government has a substantial interest in freezing potentially forfeitable assets without an evidentiary hearing about the probable cause underlying criminal charges. At the least, such an adversarial proceeding—think of it as a pre-trial mini-trial (or maybe a pre-trial not-so-mini-trial)—could consume significant prosecutorial time and resources. The hearing presumably would rehearse the case’s merits, including the Government’s theory and supporting evidence. And the Government also might have to litigate a range of ancillary questions relating to the conduct of the hearing itself (for example, could the Kaleys subpoena witnesses or exclude certain evidence?). Still more seriously, requiring a proceeding of that kind could undermine the Government’s ability either to obtain a conviction or to preserve forfeitable property. To ensure a favorable result at the hearing, the Government could choose to disclose all its witnesses and other evidence. But that would give the defendant knowledge of the Gov- ernment’s case and strategy well before the rules of crimi- Cite as: 571 U. S. (2014) 15 Opinion of the Court nal procedure—or principles of due process, see, e.g., —would otherwise require. See Fed. Rules Crim. Proc. 26.2(a), 16(a)(2); 429 U.S. 5, (“There is no general constitutional right to discovery in a criminal case”). And sometimes (particularly in organized crime and drug trafficking prosecutions, in which forfeit- ure questions often arise), that sneak preview might not just aid the defendant’s preparations but also facilitate witness tampering or jeopardize witness safety. Alterna- tively, to ensure the success of its prosecution, the Gov- ernment could hold back some of its evidence at the hear- ing or give up on the pre-trial seizure entirely. But if the Government took that tack, it would diminish the likeli- hood of ultimately recovering stolen assets to which the public is entitled.11 So any defense counsel worth his salt—whatever the merits of his case—would put the prosecutor to a choice: “Protect your forfeiture by provid- ing discovery” or “protect your conviction by surrendering the assets.”12 It is small wonder that the Government —————— 11 The dissent says not to worry—the Government can obtain the assets after conviction by using 21 U.S. C. “relation-back” provision. See post, at 15. That provision is intended to aid the Gov- ernment in recovering funds transferred to a third party—here, the Kaleys’ lawyer—subsequent to the crime. But forfeiture applies only to specific assets, so in the likely event that the third party has spent the money, the Government must resort to a State’s equitable remedies— which may or may not even be available—to force him to disgorge an equivalent amount. See Tr. of Oral Arg. 48–49. And indeed, if the Government could easily recover such monies, then few lawyers would agree to represent defendants like the Kaleys, and the dissent’s pro- posed holding would be for naught. 12 Compare Cassella, Criminal Forfeiture Procedure, 32 Am. J. Crim. L. 55, 63 (2004) (explaining that “defendants tend to demand the hearing to afford defense counsel an early opportunity to discover the nature of the Government’s criminal case and to cross-examine some of the Government’s witnesses”) with May, Attorney Fees and Government Forfeiture, 34 Champion 20, 23 (Apr. 2010) (describing the scope of, and various limits on, that right). This Court has recently described that right, separate and apart from the guaran- tee to effective representation, as “the root meaning” of the Sixth Amendment. United States v. 8 U.S. 140, 147–148 (2006); cf. Powell v. Alabama, 287 U.S. 45, 53 (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”).13 Indeed, we have held that the wrongful deprivation of choice of counsel is “structural error,” immune from review for harmlessness, because it “pervades the entire trial.” 8 U.S., at 150. Different lawyers do all kinds of things differently, sometimes “affect[ing] whether and on what terms the defendant plea bargains, or decides instead to go to trial”—and if the latter, possibly affecting whether she gets convicted or what sentence she receives. So for defendants like the Kaleys, having —————— “[e]ven if defense counsel cannot prevail on the facts or the law, he may be able to prevail anyway” because “[s]ometimes the government will decide to give up its restraint on a piece of property rather than engage in litigation that will result in early discovery”). 13 Still, a restraint on assets could not deprive the Kaleys of represen- tation sufficient to ensure fair proceedings. The Sixth Amendment would require the appointment of effective counsel if the Kaleys were unable to hire a lawyer. See (1984); The vast majority of criminal defendants proceed with appointed counsel. And the Court has never thought, as the dissent suggests today, that doing so risks the “fundamental fairness of the actual trial.” Post, at 12; see post, at 17–18. If it does, the right way to start correcting the problem is not by adopting the dissent’s position, but by ensuring that the right to effec- tive counsel is fully vindicated. Cite as: 571 U. S. (2014) 17 Opinion of the Court the ability to retain the “counsel [they] [ ] to be best”—and who might in fact be superior to any existing alternatives—matters profoundly. And yet Monsanto held, crucially for the last part of our analysis, that an asset freeze depriving a defend- ant of that interest is erroneous only when unsupported by a finding of probable Recall that Monsanto considered a case just like this one, where the defendant wanted to use his property to pay his preferred lawyer. He urged the Court to hold that the Government could seize assets needed for that purpose only after conviction. But we instead decided that the Government could act “after probable cause [that the assets are forfeitable] is adequately established.” 491 U.S., And that means in a case like this one—where the assets’ connec- tion to the allegedly illegal conduct is not in dispute, see —that a pre-trial seizure is wrongful only when there is no probable cause to the defendants com- mitted the crimes charged. Or to put the same point differently, such a freeze is erroneous—notwithstanding the weighty burden it imposes on the defendants’ ability to hire a chosen lawyer—only when the grand jury should never have issued the indictment. The test’s remaining prong—critical when the governmental and private interests both have weight— thus boils down to the “probable value, if any,” of a judicial hearing in uncovering mistaken grand jury findings of probable 424 U.S., 35. The Kaleys (and the dissent) contend that such proceedings will serve an im- portant remedial function because grand juries hear only a “one-sided presentation[ ]” of evidence. Brief for Petition- ers 57; see post, at 16. And that argument rests on a generally sound premise: that the adversarial process leads to better, more accurate decision-making. But in this context—when the legal standard is merely probable cause and the grand jury has already made that finding— 18 KALEY v. UNITED STATES Opinion of the Court both our precedents and other courts’ experience indicate that a full-dress hearing will provide little benefit. This Court has repeatedly declined to require the use of adversarial procedures to make probable cause determina- tions. Probable cause, we have often told litigants, is not a high bar: It requires only the “kind of ‘fair probability’ on which ‘reasonable and prudent [people,] not legal techni- cians, act.’ ” Florida v. Harris, 568 U. S. (2013) (slip op., ) (quoting (1983)); see (contrasting proba- ble cause to reasonable-doubt and preponderance stand- ards). That is why a grand jury’s finding of probable cause to think that a person committed a crime “can be [made] reliably without an adversary hearing,” ; it is and “has always been thought sufficient to hear only the prosecutor’s side,” United 51 So, for example, we have held the “confronta- tion and cross-examination” of witnesses unnecessary in a grand jury proceeding. –122. Similarly, we have declined to require the presentation of exculpatory evidence, see 504 U.S., 1, and we have allowed the introduction of hearsay alone, see 350 U.S., at –364. On each occasion, we relied on the same reasoning, stemming from our recogni- tion that probable cause served only a gateway function: Given the relatively undemanding “nature of the determi- nation,” the value of requiring any additional “formalities and safeguards” would “[i]n most cases be too slight.” –122. We can come out no differently here. The probable cause determinations the Kaleys contest are simply those underlying the charges in the indictment. No doubt the Kaleys could seek to poke holes in the evidence the Gov- ernment offered the grand jury to support those allega- tions. No doubt, too, the Kaleys could present evidence of their own, which might cast the Government’s in a differ- Cite as: 571 U. S. (2014) 19 Opinion of the Court ent light. (Presumably, the Kaleys would try in those two ways to show that they did not steal, but instead lawfully obtained the medical devices they later resold. See at 4.) Our criminal justice system of course relies on such contestation at trial when the question becomes whether a defendant is guilty beyond peradventure. But as we have held before, an adversarial process is far less useful to the threshold finding of probable cause, which determines only whether adequate grounds exist to proceed to trial and reach that question. The probable cause decision, by its nature, is hard to undermine, and still harder to re- verse. So the likelihood that a judge holding an eviden- tiary hearing will repudiate the grand jury’s decision strikes us, once more, as “too slight” to support a constitu- tional requirement. The evidence from other courts corroborates that view, over and over and over again. In the past two decades, the courts in several Circuits have routinely held the kind of hearing the Kaleys seek. See and n. 4. Yet neither the Kaleys nor their amici (mostly lawyers’ associ- ations) have found a single case in which a judge found an absence of probable cause to that an indicted de- fendant committed the crime charged. One amicus cites 25 reported cases involving pre-trial hearings on asset freezes. See Brief for New York Council of Defense Law- yers 4, n. 2. In 24 of those, the defendant lost outright. The last involved a not-yet-indicted defendant (so no grand jury finding); there, the District Court’s ruling for him was reversed on appeal. See Tr. of Oral Arg. 15, 36. To be sure, a kind of selection bias might affect those statistics: Perhaps a prosecutor with a very weak case would choose to abandon an asset freeze rather than face a difficult hearing. See But the Kaleys and their amici have also failed to offer any anecdotes of that kind; and we suspect that the far more common reason a prosecutor relinquishes a freeze is just to avoid premature 20 KALEY v. UNITED STATES Opinion of the Court discovery. See at 14–15. So experience, as far as anyone has discerned it, cuts against the Kaleys: It con- firms that even under they have no right to revisit the grand jury’s finding.14 IV When we decided Monsanto, we effectively resolved this case too. If the question in a pre-trial forfeiture case is whether there is probable cause to think the defendant committed the crime alleged, then the answer is: whatever the grand jury decides. And even if we test that proposi- tion by applying we arrive at the same place: In considering such findings of probable cause, we have never thought the value of enhanced evidentiary procedures worth their costs. Congress of course may strike its own balance and give defendants like the Kaleys the kind of hearing they want. Indeed, Congress could disapprove of Monsanto itself and hold pre-trial seizures of property to a higher standard than probable But the Due Pro- —————— 14 As against all this—all we have formerly held and all other courts have actually found—the dissent cites nothing: not a single decision of ours suggesting, nor a single decision of a lower court demonstrating, that formal, adversarial procedures are at all likely to correct any grand jury errors. The dissent argues only that a hearing will have “probable value” for the Kaleys because “the deprivation of [their] right” to chosen counsel, once accomplished, is “effectively permanent.” Post, at 16. But that argument confuses two different parts of the inquiry. The dissent’s point well underscores the importance of the Kaleys’ interest: As we have readily acknowledged, if the grand jury made a mistake, the Kaleys have suffered a serious injury, which cannot later be corrected. See at 16–17. (We note, though, that the dissent, in asserting that injury’s uniqueness, understates the losses that always attend a mistaken indictment, which no ultimate verdict can erase.) But the dissent’s argument about what is at stake for the Kaleys says nothing about the crucial, last prong of which asks whether and to what extent the adversarial procedures they request will in fact correct any grand jury errors. That part of the analysis is what requires our decision, and the dissent’s view that the Government overreached in this particular case cannot overcome it. Cite as: 571 U. S. (2014) 21 Opinion of the Court cess Clause, even when combined with a defendant’s Sixth Amendment interests, does not command those results. Accordingly, the Kaleys cannot challenge the grand jury’s conclusion that probable cause supports the charges against them. The grand jury gets the final word. We therefore affirm the judgment of the Eleventh Cir- cuit and remand the case for further proceedings con- sistent with this opinion. It is so ordered. Cite as: 571 U. S. (2014) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–464 KERRI L. KALEY, ET VIR, PETITIONERS v.

Justice Roberts

dissenting

Kaley v. United States

2014-02-25

https://www.courtlistener.com/opinion/2654533/kaley-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/2654533/

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself. We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor- tunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent. I The facts of this case are important. They highlight the significance to a defendant of being able to hire his counsel of choice, and the potential for unfairness inherent in giving the prosecutor the discretion to take that right away. Kerri Kaley worked as a sales representative for a Johnson & Johnson subsidiary, selling prescription medi- cal devices. Kaley and other sales representatives occa- sionally obtained outmoded or surplus devices from staff 2 KALEY v. UNITED STATES ROBERTS, C. J., dissenting members at the medical facilities they served, when, for example, those devices were no longer needed because they had been superseded by newer models. Kaley sold the unwanted devices to a Florida company, dividing the proceeds among the sales representatives. Kaley learned in January 2005 that a federal grand jury was investigating those activities as a conspiracy to sell stolen prescription medical devices. Kaley and her hus- band (who allegedly helped ship the products to Florida) retained counsel, who immediately set to work preparing their defense against any impending charges. Counsel regularly discussed the investigation with the Kaleys, helped review documents demanded by the grand jury, and met with prosecutors in an attempt to ward off an indictment. Nonetheless preparing for the worst, the Kaleys applied for a $500,000 equity line of credit on their home to pay estimated legal fees associated with a trial. They used that money to purchase a $500,000 certificate of deposit, which they set aside until it would be needed to pay their attorneys for the trial. In February 2007, the grand jury returned a seven- count indictment charging the Kaleys and another sales representative, Jennifer Gruenstrass, with violations of federal law. The indictment alleged that a “money judg- ment” of over $2 million and the $500,000 certificate of deposit were subject to forfeiture under 18 U.S. C. §981(a)(1)(C) because those assets constituted “proceeds” of the alleged crimes. Armed with this indictment, the prosecution obtained an ex parte order pursuant to 21 U.S. C. §853(e), thereby freezing all of the Kaleys’ assets listed in the indictment, including the certificate of deposit set aside for legal fees. The Government did not seek to freeze any of Gruenstrass’s assets. The Kaleys moved to vacate the order, requesting a hearing at which they could argue that there was no prob- able cause to believe their assets were forfeitable, because Cite as: 571 U. S. ____ (2014) 3 ROBERTS, C. J., dissenting their alleged conduct was not criminal. They argued they were entitled to such a hearing because the restraining order targeted funds they needed and had set aside to retain for trial the same counsel who had been preparing their defense for two years. And they contended that the prosecution was baseless because the Government could not identify anyone who claimed ownership of the medical devices alleged to have been “stolen.” During a telephone conference with a Magistrate Judge on the motion, the prosecution conceded that it had been able to trace only $140,000 in allegedly criminal proceeds to the Kaleys, which led the Magistrate Judge to question the lawfulness of restraining the listed assets. Just two business days after that conference, the Gov- ernment obtained a superseding indictment that added a count of conspiracy to commit money laundering under 18 U.S. C. §1956(h). Adding that charge enabled the Gov- ernment to proceed under a much broader forfeiture provi- sion than the one in the original indictment. While the civil forfeiture provision in §981(a)(1)(C) authorized forfeit- ure of property that “constitutes or is derived from pro- ceeds traceable to” a qualifying criminal violation, the criminal forfeiture provision now invoked by the Govern- ment—§982(a)(1)—authorizes forfeiture of property “in- volved in” a qualifying offense, or “any property traceable to such property.” The superseding indictment alleged that a sum of more than $2 million, the certificate of de- posit reserved to pay legal expenses, and now the Kaleys’ home were subject to forfeiture. And again, the Govern- ment sought an order freezing substantially all those assets. The Kaleys objected, repeating the arguments they had previously raised, and also contending that the prosecu- tors were being vindictive in adding the money laundering charge and seeking broader forfeiture. The District Court nonetheless entered the broader order requested by the 4 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Government, and the restraint on the Kaleys’ assets re- mains in place. While the Kaleys’ appeal from that denial was pending, the Government proceeded to trial separately against their codefendant Gruenstrass. As the Government had not sought to freeze Gruenstrass’s assets, she was repre- sented by her chosen counsel. Her counsel argued that the Government was pitching a fraud without a victim, be- cause no Government witness took the stand to claim ownership of the allegedly stolen devices. The jury acquit- ted Gruenstrass on all charges in less than three hours—a good omen for the Kaleys and their counsel as they pre- pared for their own trial. II The issues at stake here implicate fundamental consti- tutional principles. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his de- fence.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys. United States v. Cronic, 466 U.S. 648, 653–654 (1984). And more than 80 years ago, we found it “hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U.S. 45, 53 (1932). Indeed, we recently called the “right to select counsel of one’s choice . . . . the root meaning of the constitutional guarantee” of the Sixth Amendment. United States v. Gonzalez-Lopez, 548 U.S. 140, 147–148 (2006). The Amendment requires “that a particular guarantee of fair- ness be provided—to wit, that the accused be defended by the counsel he believes to be best.” Id., at 146. An individual’s right to counsel of choice is violated “whenever the defendant’s choice is wrongfully denied,” and such Cite as: 571 U. S. ____ (2014) 5 ROBERTS, C. J., dissenting error “pervades the entire trial.” Id., at 150. A violation of this right is therefore a “structural error,” ibid.; that is, one of the very few kinds of errors that “undermine the fairness of a criminal proceeding as a whole.” United States v. Davila, 569 U. S. ___, ___ (2013) (slip op., at 12). It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. Wheat v. United States, 486 U.S. 153, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred coun- sel if it has legitimate reasons not to do so. Morris v. Slappy, 461 U.S. 1, 11–12 (1983). But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial. This Court has held that the prosecution may freeze assets a defendant needs to retain his counsel of choice upon “a finding of probable cause to believe that the assets are forfeitable.” United States v. Monsanto, 491 U.S. 600, 615 (1989). The Kaleys do not challenge that holding here. But the Court in Monsanto acknowledged and re- served the crucial question whether a defendant had the right to be heard before the Government could take such action. Id., at 615, n. 10.1 There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire pro- ceeding. “A fair trial in a fair tribunal is a basic require- —————— 1 Because the District Court in Monsanto had imposed the restraining order after an “extensive, 4-day hearing on the question of probable cause,” it was “pointless” for this Court to decide whether a hearing was required to “adequately establish[ ]” probable cause. 491 U.S., at 615, n. 10, 616. 6 KALEY v. UNITED STATES ROBERTS, C. J., dissenting ment of due process.” In re Murchison, 349 U.S. 133, 136 (1955). Issues concerning the denial of counsel of choice implicate the overall fairness of the trial because they “bear[ ] directly on the ‘framework within which the trial proceeds.’ ” Gonzalez-Lopez, supra, at 150 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). III Notwithstanding the substantial constitutional issues at stake, the majority believes that syllogistic-type reasoning effectively resolves this case. Ante, at 12. The majority’s reasoning goes like this: First, to freeze assets prior to trial, the Government must show probable cause to believe that a defendant has committed an offense giving rise to forfeiture. Second, grand jury determinations of probable cause are nonreviewable. Therefore, the Kaleys cannot “relitigate [the] grand jury finding” of probable cause to avoid a pretrial restraint of assets they need to retain their counsel of choice. Ibid. I do not view the matter as nearly so “straightforward,” and neither did the multiple Courts of Appeals since Monsanto that have granted defendants the type of hearing the Kaleys request. See ante, at 3, n. 4. To begin with, the majority’s conclusion is wrong on its own terms. To freeze assets prior to trial, the Government must show probable cause to believe both that (1) a de- fendant has committed an offense giving rise to forfeiture and (2) the targeted assets have the requisite connection to the alleged criminal conduct. 21 U.S. C. §853(e)(1)(A). The Solicitor General concedes—and all Courts of Appeals to have considered the issue have held—that “defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense,” Tr. of Oral Arg. 45; that is, that the second prong of the required showing is not satisfied. But by listing prop- erty in the indictment and alleging that it is subject to Cite as: 571 U. S. ____ (2014) 7 ROBERTS, C. J., dissenting forfeiture—as required to restrain assets before trial under §853(e)(1)(A)—the grand jury found probable cause to believe those assets were linked to the charged offenses, just as it found probable cause to believe the Kaleys com- mitted the underlying crimes. App. 60–61 (separate in- dictment section alleging criminal forfeiture, including of the certificate of deposit); see United States v. Jones, 160 F.3d 641, 645 (CA10 1998); United States v. Monsanto, 924 F.2d 1186, 1197 (CA2 1991) (en banc); Dept. of Jus- tice, Asset Forfeiture Policy Manual 128 (2013) (“That the indictment alleges that property is subject to forfeiture indicates that the grand jury has made a probable cause determination.”). Neither the Government nor the major- ity gives any reason why the District Court may reconsider the grand jury’s probable cause finding as to traceability— and in fact constitutionally must, if asked—but may not do so as to the underlying charged offenses.2 In any event, the hearing the Kaleys seek would not be mere relitigation of the grand jury proceedings. At that hearing, the District Court would consider the merits of the prosecution to determine whether there is probable cause to believe the Kaleys’ assets are forfeitable, not to determine whether the Kaleys may be tried at all. If the judge agrees with the Kaleys, he will merely hold that the Government has not met its burden at that hearing to justify freezing the assets the Kaleys need to pay their attorneys. The Government may proceed with the prose- —————— 2 The majority’s only response is to characterize the grand jury’s finding of traceability as merely a “technical matter.” Ante, at 11, n. 9. But the indictment draws no distinction between the grand jury’s finding of probable cause to believe that the Kaleys committed a crime and its finding of probable cause to believe that certain assets are traceable to that crime. Both showings must be made to justify a pretrial asset restraint under Monsanto, and there is nothing in that case or the indictment that justifies treating one grand jury finding differently than the other. 8 KALEY v. UNITED STATES ROBERTS, C. J., dissenting cution, but the Kaleys will have their chosen counsel at their side. Even though the probable cause standard applies at both the indictment stage and the pretrial asset restraint hearing, the judge’s determination will be based on differ- ent evidence than that previously presented to the grand jury. For its part, the Government may choose to put on more or less evidence at the hearing than it did before the grand jury. And of course the Kaleys would have the opportunity to tell their side of the story—something the grand jury never hears. See United States v. Williams, 504 U.S. 36, 51–52 (1992). Here, much of what the Kaleys want to present comes from Gruenstrass’s trial— evidence that the grand jury obviously could not have considered. So even if the judge determined that probable cause to justify the pretrial asset restraint had not been adequately established, that determination would not in any way amount to “looking into and revising the judg- ment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” Ante, at 7 (quoting Costello v. United States, 350 U.S. 359, 362–363 (1956) (internal quotation marks omitted)). The judge’s decision based on the evidence presented at the hearing would have no necessary legal or logical consequence for the underlying prosecution because it would be based on different evi- dence and used for a different purpose. The majority warns that allowing a judge to consider the underlying merits of the prosecution for purposes of determining whether a defendant’s assets may be re- strained pretrial could create “legal dissonance” with the grand jury’s indictment, which “could not but undermine the criminal justice system’s integrity.” Ante, at 10–11. But as explained, such a judicial finding based on different evidence with both sides present would not contradict the grand jury’s probable cause finding based on what was Cite as: 571 U. S. ____ (2014) 9 ROBERTS, C. J., dissenting before it. That finding would still suffice to accomplish its purpose—to call for a trial on the merits of the charges. Rather than creating “dissonance,” the traditional roles of the principal actors in our justice system would remain respected: The grand jury decides whether a defendant should be required to stand trial, the judge decides pre- trial matters and how the trial should proceed, and the jury decides whether the defendant is guilty of the crime. Indeed, in the bail context—the pretrial determination that is perhaps the closest analogue to the pretrial re- straint of assets at issue here—we allow judicial inquiries into the underlying merits of the indicted charges, without concern about intruding into the province of the grand jury. An indictment charging sufficiently serious crimes gives rise to a rebuttable presumption that a defend- ant is not eligible for pretrial release. See 18 U.S. C. §§3142(e)(3) and (f). Such a defendant is nonetheless entitled to an evidentiary hearing at which he may contest (among other things) “the weight of the evidence against” him, §3142(g)(2). Yet no one would say that the district court encroached on the grand jury’s role if the court de- termined that it would not authorize pretrial detention because of the weakness of the prosecution’s case. See, e.g., United States v. Hurtado, 779 F.2d 1467, 1479–1480 (CA11 1985) (recognizing that in considering the “weight of the evidence” to decide whether the presumption is rebutted, “it may well be necessary to open up the issue of probable cause since that too is a question of evidentiary weight”). That makes sense, because the district court has considered the underlying merits of the charges based on different information and for a different purpose than the grand jury did. Such a defendant would be granted pre- trial release, but would still have to show up for trial.3 —————— 3 The majority cites cases in which courts have correctly rejected re- quests for a judicial redetermination of the grand jury’s probable cause 10 KALEY v. UNITED STATES ROBERTS, C. J., dissenting In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play. IV The majority is no more persuasive in applying the due process balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976).4 As an initial matter, the majority —————— finding for purposes of determining whether the rebuttable presumption of pretrial detention is triggered. See ante, at 8–9, n. 6. But those cases do not question the judge’s authority to consider the underlying merits of the Government’s case (including what the grand jury has alleged in the indictment) for purposes of determining whether that presumption has been rebutted. E.g., United States v. Dominguez, 783 F.2d 702, 706 (CA7 1986) (“evidence probative of guilt is admitted at a detention hearing only to support or challenge the weight of the gov- ernment’s case against the defendant”); see also United States v. Jones, 583 F. Supp. 2d 513, 517 (SDNY 2008) (releasing a defendant pretrial after determining that “the weight of the evidence now overcomes the presumption of detention”). The majority notes that this inquiry in the bail context is authorized by statute, but that does not alter the crucial point: Where the prosecutor seeks to use the indictment to impose another significant pretrial consequence on a defendant, judges are allowed to inquire into the underlying merits of the prosecution (includ- ing the very same matters the grand jury has considered) as part of the inquiry into whether that consequence is justified, and that has not resulted in “dissonance” or the undermining of the grand jury’s role. 4 Under our due process precedents, it is clear that the Mathews test applies in this case, rather than the inquiry set forth in Medina v. California, 505 U.S. 437 (1992). We held in Medina that Mathews is inapplicable when “assessing the validity of state procedural rules” that “are part of the criminal process.” Id., at 443. We have therefore applied Medina rather than Mathews only when considering such due process challenges, including, for example, the allocation of burdens of proof or what type of evidence may be admitted. See, e.g., id., at 443– Cite as: 571 U. S. ____ (2014) 11 ROBERTS, C. J., dissenting gives short shrift to the Kaleys’ interests at stake. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). Whatever serious crimes the grand jury alleges the Kaleys committed, they are presumptively innocent of those charges until final judgment. Their right to vindicate that presumption by choosing the advocate they believe will best defend them is, as explained, at the very core of the Sixth Amendment. I suspect that, for the Kaleys, that right could hardly be more precious than it is now. In addition to potentially losing the property the Government has already frozen— including their home—the Kaleys face maximum prison terms of five years (18 U.S. C. §371), ten years (§2314), and 20 years (§1956(h)) for the charges in the superseding indictment. The indictment means they must stand trial on those charges. But the Kaleys plainly have an urgent interest in having their chosen counsel—who has worked with them since the grand jury’s investigation began, two years before the indictment—mount their best possible defense at trial. The majority alludes to our cases recognizing that in- dictments may result in the temporary deprivation of a defendant’s liberty without judicial review, and suggests that indictments therefore must also be “good enough” to deprive a defendant of property without judicial review. Ante, at 9–10. Even if this greater-includes-the-lesser —————— 446 (burden of proving incompetence to stand trial); Patterson v. New York, 432 U.S. 197, 202 (1977) (burden of proving affirmative defense); Dowling v. United States, 493 U.S. 342, 352 (1990) (admissibility of testimony about a prior crime of which the defendant was acquitted). This case is not about such questions, but about the collateral issue of the pretrial deprivation of property a defendant needs to exercise his right to counsel of choice. Mathews therefore provides the relevant inquiry. 12 KALEY v. UNITED STATES ROBERTS, C. J., dissenting reasoning might be valid in other contexts, it is not when the property at issue is needed to hire chosen counsel. In the context of a prosecution for serious crimes, it is far from clear which interest is greater—the interest in tem- porary liberty pending trial, or the interest in using one’s available means to avoid imprisonment for many years after trial. Retaining one’s counsel of choice ensures the fundamental fairness of the actual trial, and thus may be far more valuable to a criminal defendant than pretrial release. As for the Government’s side, the Court echoes the Government’s concerns that a hearing would place de- mands on its resources and interfere with its desire to keep its trial strategy close to the vest. These concerns are somewhat curious in light of the majority’s emphasis on how easy it is to make a probable cause showing. And they are even more surprising in light of the extensive discovery obligations already imposed on the Government by Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963). The emphasis the Gov- ernment places on pretrial secrecy evokes an outdated conception of the criminal trial as “a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82 (1970). Moreover, recall that the Government concedes that due process guarantees defendants a hearing to contest the traceability of the restrained assets to the charged con- duct. If a defendant requests such a hearing, the Gov- ernment will likely be required to reveal something about its case to demonstrate that the assets have the requisite connection to the charged offenses. In any event, these concerns are exaggerated. What the Government would be required to show in a pretrial re- straint hearing is similar to pretrial showings prosecutors make in other contexts on a daily basis. As mentioned Cite as: 571 U. S. ____ (2014) 13 ROBERTS, C. J., dissenting above, when the Government seeks an order detaining a defendant pending trial, it routinely makes an extensive evidentiary showing—voluntarily disclosing much of its evidence and trial strategy—in support of that relief. See Brief for California Attorneys for Criminal Justice as Amicus Curiae 11–18. The Government makes similar showings in the context of other pretrial motions, such as motions to admit hearsay evidence under the co- conspirator exception, or to discover attorney-client com- munications made in furtherance of a future crime. Id., at 19–28. In those contexts, as in this one, the decision how much to “show its hand” rests fully within the Government’s discretion. If it has a strong case and believes that pretrial restraint is necessary to preserve the assets for forfeit- ure, the Government may choose to make a strong evi- dentiary showing and have little concern about doing so. In a closer case, where the Government is more concerned about tipping its hand, it may elect to forgo a pretrial restraint of those assets the defendant needs to pay his counsel. I see no great burden on the Government in allowing it to strike this balance as it sees fit when consid- ering a pretrial asset restraint that would deprive a de- fendant of his right to counsel of choice. In the end, it is a bit much to argue that the Government has discretion to deprive a defendant—without a hearing—of the counsel he has chosen to present his defense, simply to avoid the mere possibility of a premature peek at some aspect of what the Government intends to do at trial. The majority also significantly underestimates the amount of control judges can exercise in these types of hearings. The Circuits that allow such hearings have afforded judges a great deal of flexibility in structuring them. Judges need not apply the Federal Rules of Evi- dence during the hearings, and they can take many steps, including in camera proceedings, to ensure that witness 14 KALEY v. UNITED STATES ROBERTS, C. J., dissenting safety and grand jury secrecy are fully preserved. See Monsanto, 924 F.2d, at 1198; United States v. E-Gold, Ltd., 521 F.3d 411, 418–419 (CADC 2008). Moreover, experience in the Second Circuit, where defendants have for more than 20 years been afforded the type of hearing the Kaleys seek, indicates that such hear- ings do not occur so often as to raise substantial concerns about taxing the resources of the Government and lower courts. See Brief for New York Council of Defense Law- yers as Amicus Curiae 4–9. As the majority notes, only 25 reported cases appear to have addressed such hearings. Id., at 4. This relative rarity is unsurprising. To even be entitled to the hearing, defendants must first show a genuine need to use the assets to retain counsel of choice. See United States v. Bonventre, 720 F.3d 126, 131 (CA2 2013). And defendants too have an incentive not to tip their hands as to trial strategy—perhaps to an even greater extent than the Government, given that defendants bear comparatively few discovery obligations at a criminal trial. In light of the low bar of the probable cause stand- ard, many defendants likely conclude that the possible benefits of the hearing are not worth the candle. For those hearings that do occur, they are by all appear- ances ably controlled by district judges to keep them man- ageable and to limit the potential for excess or abuse. See Brief for New York Council of Defense Lawyers as Amicus Curiae 6–8. In addition, where such hearings are allowed, prosecutors and defense counsel often reach agreements concerning the scope and conditions of any protective order that accommodate the interests of both sides. See id., at 8–9. When the right at stake is as fundamental as hiring one’s counsel of choice—the “root meaning” of the Sixth Amendment, Gonzalez-Lopez, 548 U.S., at 147– 148—the Government’s interest in saving the time and expense of a limited number of such proceedings is not particularly compelling. Cite as: 571 U. S. ____ (2014) 15 ROBERTS, C. J., dissenting The Government does have legitimate interests that are served by forfeiture of allegedly tainted assets. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 629 (1989). And imposing a pretrial restraint on such assets does increase the likelihood that they will be available if the defendant is convicted.5 But that interest is protected in other ways that mitigate the concern that defendants will successfully divert forfeitable assets from the Gov- ernment’s reach if afforded a hearing. The relation-back provision in 21 U.S. C. §853(c) provides that title to for- feitable assets, once adjudged forfeitable, vests in the Government as of the time the offense was committed. Section 853(c) then provides that the Government may seek a “special verdict of forfeiture” as to any forfeited property that was subsequently transferred to a third party. The Government protests that recovery of such assets will often be complicated and subject to the vagar- ies of state law. Tr. of Oral Arg. 49–50. But such com- plaints of administrative inconvenience carry little weight in this particular context, when the Government knows exactly where the money has gone: to an attorney who is, after all, an officer of the court, and on notice that the Government claims title to the assets. And we are not talking about all of a defendant’s assets that are subject to forfeiture—only those that the defend- ant can show are necessary to secure his counsel of choice. —————— 5 The Government and the majority place particular emphasis on the use of forfeited assets to provide restitution to victims of crime. See Brief for United States 41–42, and n. 14; ante, at 2, n. 1. It is worth noting in this respect that in prosecuting the other sales representa- tives that participated with the Kaleys in the allegedly fraudulent conduct, the Government’s position as to who exactly is the “victim” has shifted frequently. See Brief for Petitioners 9–11 (hospitals); id., at 18, 21–23 (their employers); Tr. of Oral Arg. 43–44 (hospitals). As one prosecutor forthrightly acknowledged at the sentencing hearing of an alleged co-conspirator, “we can’t make restitution.” Brief for Petition- ers 11. 16 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Here, for example, the Kaleys have identified as needed to pay counsel only a discrete portion of the assets the Gov- ernment seeks. The statistics cited by the Court on the total amount of assets recovered by the Government and provided as restitution for victims, ante, at 2, n. 1, are completely beside the point. The majority ultimately concludes that a pretrial hear- ing of the sort the Kaleys seek would be a waste of time. Ante, at 17–20. No. It takes little imagination to see that seizures based entirely on ex parte proceedings create a heightened risk of error. Common sense tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hear- ing from both sides. We have thus consistently recognized that the “fundamental instrument for judicial judgment” is “an adversary proceeding in which both parties may par- ticipate.” Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183 (1968). In the present context, some defendants (like the Kaleys) may be able to show that the theory of prosecution is legally defective through an argument that almost certainly was not presented to the grand jury. And as discussed above, supra, at 13–15, prosecutors in some cases elect not to freeze needed assets, or they negotiate tailored protective orders to serve the interests of both sides—something they would be unlikely to do if the hearings were rote exercises. Given the risk of an erroneous restraint of assets needed to retain chosen counsel, the “probable value” of the “addi- tional safeguard” a pretrial hearing would provide is significant. That is because the right to counsel of choice is inherently transient, and the deprivation of that right effectively permanent. In our cases suggesting that little would be gained by requiring an adversary hearing on probable cause or imposing stricter evidentiary require- ments in grand jury proceedings, we have noted that the grand jury is not where the ultimate question of “the guilt Cite as: 571 U. S. ____ (2014) 17 ROBERTS, C. J., dissenting or innocence of the accused is adjudicated.” United States v. Calandra, 414 U.S. 338, 343 (1974); see United States v. Williams, 504 U.S. 36, 51 (1992) (explaining that the grand jury hears only from the prosecutor because “ ‘the finding of an indictment is only in the nature of an en- quiry or accusation, which is afterwards to be tried and determined’ ” (quoting 4 W. Blackstone, Commentaries 300 (1769)). If the grand jury considers incomplete or incom- petent evidence in deciding to return an indictment, the defendant still has the full trial on the merits, with all its “formalities and safeguards,” Gerstein v. Pugh, 420 U.S. 103, 122 (1975), to prove his innocence. Here, by contrast, the Government seeks to use the grand jury’s probable cause determination to strip the Kaleys of their counsel of choice. The Kaleys can take no comfort that they will be able to vindicate that right in a future adversarial proceeding. Once trial begins with someone other than chosen counsel, the right is lost, and it cannot be restored based on what happens at trial. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews, 424 U.S., at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). If the Kaleys are to have any opportunity to meaningfully challenge that deprivation, they must have it before the trial begins. * * * The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 18 KALEY v. UNITED STATES ROBERTS, C. J., dissenting The trial is governed by rules designed to ensure that, whatever the ultimate verdict, we can be confident to the extent possible that justice was done, within the bounds of the Constitution. That confidence is grounded in our belief in the adversary system. “The very premise of our adversary system of criminal justice is that partisan advo- cacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U.S. 853, 862 (1975). Today’s decision erodes that confidence by permitting the Government to deprive a criminal defendant of his right to counsel of choice, without so much as a chance to be heard on why such a significant pretrial deprivation is unwarranted. The majority wraps up its analysis by blandly noting that Congress is of course free to extend broader protec- tion to criminal defendants. Ante, at 20. Not very likely. In this area it is to the courts that those charged with crime must turn. Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself. We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor- tunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent. I The facts of this case are important. They highlight the significance to a defendant of being able to hire his counsel of choice, and the potential for unfairness inherent in giving the prosecutor the discretion to take that right away. Kerri Kaley worked as a sales representative for a Johnson & Johnson subsidiary, selling prescription medi- cal devices. Kaley and other sales representatives occa- sionally obtained outmoded or surplus devices from staff 2 KALEY v. UNITED STATES ROBERTS, C. J., dissenting members at the medical facilities they served, when, for example, those devices were no longer needed because they had been superseded by newer models. Kaley sold the unwanted devices to a Florida company, dividing the proceeds among the sales representatives. Kaley learned in January 2005 that a federal grand jury was investigating those activities as a conspiracy to sell stolen prescription medical devices. Kaley and her hus- band (who allegedly helped ship the products to Florida) retained counsel, who immediately set to work preparing their defense against any impending charges. Counsel regularly discussed the investigation with the Kaleys, helped review documents demanded by the grand jury, and met with prosecutors in an attempt to ward off an indictment. Nonetheless preparing for the worst, the Kaleys applied for a $500,000 equity line of credit on their home to pay estimated legal fees associated with a trial. They used that money to purchase a $500,000 certificate of deposit, which they set aside until it would be needed to pay their attorneys for the trial. In February 2007, the grand jury returned a seven- count indictment charging the Kaleys and another sales representative, Jennifer Gruenstrass, with violations of federal law. The indictment alleged that a “money judg- ment” of over $2 million and the $500,000 certificate of deposit were subject to forfeiture under 18 U.S. C. because those assets constituted “proceeds” of the alleged crimes. Armed with this indictment, the prosecution obtained an ex parte order pursuant to 21 U.S. C. thereby freezing all of the Kaleys’ assets listed in the indictment, including the certificate of deposit set aside for legal fees. The Government did not seek to freeze any of Gruenstrass’s assets. The Kaleys moved to vacate the order, requesting a hearing at which they could argue that there was no prob- able cause to believe their assets were forfeitable, because Cite as: 571 U. S. (2014) 3 ROBERTS, C. J., dissenting their alleged conduct was not criminal. They argued they were entitled to such a hearing because the restraining order targeted funds they needed and had set aside to retain for trial the same counsel who had been preparing their defense for two years. And they contended that the prosecution was baseless because the Government could not identify anyone who claimed ownership of the medical devices alleged to have been “stolen.” During a telephone conference with a Magistrate Judge on the motion, the prosecution conceded that it had been able to trace only $140,000 in allegedly criminal proceeds to the Kaleys, which led the Magistrate Judge to question the lawfulness of restraining the listed assets. Just two business days after that conference, the Gov- ernment obtained a superseding indictment that added a count of conspiracy to commit money laundering under 18 U.S. C. Adding that charge enabled the Gov- ernment to proceed under a much broader forfeiture provi- sion than the one in the original indictment. While the civil forfeiture provision in authorized forfeit- ure of property that “constitutes or is derived from pro- ceeds traceable to” a qualifying criminal violation, the criminal forfeiture provision now invoked by the Govern- forfeiture of property “in- volved in” a qualifying offense, or “any property traceable to such property.” The superseding indictment alleged that a sum of more than $2 million, the certificate of de- posit reserved to pay legal expenses, and now the Kaleys’ home were subject to forfeiture. And again, the Govern- ment sought an order freezing substantially all those assets. The Kaleys objected, repeating the arguments they had previously raised, and also contending that the prosecu- tors were being vindictive in adding the money laundering charge and seeking broader forfeiture. The District Court nonetheless entered the broader order requested by the 4 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Government, and the restraint on the Kaleys’ assets re- mains in place. While the Kaleys’ appeal from that denial was pending, the Government proceeded to trial separately against their codefendant Gruenstrass. As the Government had not sought to freeze Gruenstrass’s assets, she was repre- sented by her chosen counsel. Her counsel argued that the Government was pitching a fraud without a victim, be- cause no Government witness took the stand to claim ownership of the allegedly stolen devices. The jury acquit- ted Gruenstrass on all charges in less than three hours—a good omen for the Kaleys and their counsel as they pre- pared for their own trial. II The issues at stake here implicate fundamental consti- tutional principles. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his de- fence.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys. United States v. Cronic, And more than 80 years ago, we found it “hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Indeed, we recently called the “right to select counsel of one’s choice the root meaning of the constitutional guarantee” of the Sixth Amendment. United States v. The Amendment requires “that a particular guarantee of fair- ness be provided—to wit, that the accused be defended by the counsel he believes to be best.” An individual’s right to counsel of choice is violated “whenever the defendant’s choice is wrongfully denied,” and such Cite as: 571 U. S. (2014) 5 ROBERTS, C. J., dissenting error “pervades the entire trial.” A violation of this right is therefore a “structural error,” ibid.; that is, one of the very few kinds of errors that “undermine the fairness of a criminal proceeding as a whole.” United States v. Davila, 569 U. S. (2013) (slip op., at 12). It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. 486 U.S. 1, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred coun- sel if it has legitimate reasons not to do so. Morris v. Slappy, But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial. This Court has held that the prosecution may freeze assets a defendant needs to retain his counsel of choice upon “a finding of probable cause to believe that the assets are forfeitable.” United 615 (1989). The Kaleys do not challenge that holding here. But the Court in acknowledged and re- served the crucial question whether a defendant had the right to be heard before the Government could take such action.1 There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire pro- ceeding. “A fair trial in a fair tribunal is a basic require- —————— 1 Because the District Court in had imposed the restraining order after an “extensive, 4-day hearing on the question of probable cause,” it was “pointless” for this Court to decide whether a hearing was required to “adequately establish[ ]” probable n. 10, 616. 6 KALEY v. UNITED STATES ROBERTS, C. J., dissenting ment of due process.” In re Murchison, (1955). Issues concerning the denial of counsel of choice implicate the overall fairness of the trial because they “bear[ ] directly on the ‘framework within which the trial proceeds.’ ” ). III Notwithstanding the substantial constitutional issues at stake, the majority believes that syllogistic-type reasoning effectively resolves this case. Ante, at 12. The majority’s reasoning goes like this: First, to freeze assets prior to trial, the Government must show probable cause to believe that a defendant has committed an offense giving rise to forfeiture. Second, grand jury determinations of probable cause are nonreviewable. Therefore, the Kaleys cannot “relitigate [the] grand jury finding” of probable cause to avoid a pretrial restraint of assets they need to retain their counsel of choice. I do not view the matter as nearly so “straightforward,” and neither did the multiple Courts of Appeals since that have granted defendants the type of hearing the Kaleys request. See ante, at 3, n. 4. To begin with, the majority’s conclusion is wrong on its own terms. To freeze assets prior to trial, the Government must show probable cause to believe both that (1) a de- fendant has committed an offense giving rise to forfeiture and (2) the targeted assets have the requisite connection to the alleged criminal conduct. 21 U.S. C. §8(e)(1)(A). The Solicitor General concedes—and all Courts of Appeals to have considered the issue have held—that “defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense,” Tr. of Oral Arg. 45; that is, that the second prong of the required showing is not satisfied. But by listing prop- erty in the indictment and alleging that it is subject to Cite as: 571 U. S. (2014) 7 ROBERTS, C. J., dissenting forfeiture—as required to restrain assets before trial under §8(e)(1)(A)—the grand jury found probable cause to believe those assets were linked to the charged offenses, just as it found probable cause to believe the Kaleys com- mitted the underlying crimes. App. 60–61 (separate in- dictment section alleging criminal forfeiture, including of the certificate of deposit); see United States v. Jones, 160 F.3d 641, 645 (CA10 1998); United ; Dept. of Jus- tice, Asset Forfeiture Policy Manual 128 (2013) (“That the indictment alleges that property is subject to forfeiture indicates that the grand jury has made a probable cause determination.”). Neither the Government nor the major- ity gives any reason why the District Court may reconsider the grand jury’s probable cause finding as to traceability— and in fact constitutionally must, if asked—but may not do so as to the underlying charged offenses.2 In any event, the hearing the Kaleys seek would not be mere relitigation of the grand jury proceedings. At that hearing, the District Court would consider the merits of the prosecution to determine whether there is probable cause to believe the Kaleys’ assets are forfeitable, not to determine whether the Kaleys may be tried at all. If the judge agrees with the Kaleys, he will merely hold that the Government has not met its burden at that hearing to justify freezing the assets the Kaleys need to pay their attorneys. The Government may proceed with the prose- —————— 2 The majority’s only response is to characterize the grand jury’s finding of traceability as merely a “technical matter.” Ante, at 11, n. 9. But the indictment draws no distinction between the grand jury’s finding of probable cause to believe that the Kaleys committed a crime and its finding of probable cause to believe that certain assets are traceable to that crime. Both showings must be made to justify a pretrial asset restraint under and there is nothing in that case or the indictment that justifies treating one grand jury finding differently than the other. 8 KALEY v. UNITED STATES ROBERTS, C. J., dissenting cution, but the Kaleys will have their chosen counsel at their side. Even though the probable cause standard applies at both the indictment stage and the pretrial asset restraint hearing, the judge’s determination will be based on differ- ent evidence than that previously presented to the grand jury. For its part, the Government may choose to put on more or less evidence at the hearing than it did before the grand jury. And of course the Kaleys would have the opportunity to tell their side of the story—something the grand jury never hears. See United Here, much of what the Kaleys want to present comes from Gruenstrass’s trial— evidence that the grand jury obviously could not have considered. So even if the judge determined that probable cause to justify the pretrial asset restraint had not been adequately established, that determination would not in any way amount to “looking into and revising the judg- ment of the grand jury upon the evidence, for the purpose of determining whether or not the finding was founded upon sufficient proof.” Ante, at 7 (internal quotation marks omitted)). The judge’s decision based on the evidence presented at the hearing would have no necessary legal or logical consequence for the underlying prosecution because it would be based on different evi- dence and used for a different purpose. The majority warns that allowing a judge to consider the underlying merits of the prosecution for purposes of determining whether a defendant’s assets may be re- strained pretrial could create “legal dissonance” with the grand jury’s indictment, which “could not but undermine the criminal justice system’s integrity.” Ante, at 10–11. But as explained, such a judicial finding based on different evidence with both sides present would not contradict the grand jury’s probable cause finding based on what was Cite as: 571 U. S. (2014) 9 ROBERTS, C. J., dissenting before it. That finding would still suffice to accomplish its purpose—to call for a trial on the merits of the charges. Rather than creating “dissonance,” the traditional roles of the principal actors in our justice system would remain respected: The grand jury decides whether a defendant should be required to stand trial, the judge decides pre- trial matters and how the trial should proceed, and the jury decides whether the defendant is guilty of the crime. Indeed, in the bail context—the pretrial determination that is perhaps the closest analogue to the pretrial re- straint of assets at issue here—we allow judicial inquiries into the underlying merits of the indicted charges, without concern about intruding into the province of the grand jury. An indictment charging sufficiently serious crimes gives rise to a rebuttable presumption that a defend- ant is not eligible for pretrial release. See 18 U.S. C. and (f). Such a defendant is nonetheless entitled to an evidentiary hearing at which he may contest (among other things) “the weight of the evidence against” him, Yet no one would say that the district court encroached on the grand jury’s role if the court de- termined that it would not authorize pretrial detention because of the weakness of the prosecution’s case. See, e.g., United 1479–1480 (CA11 1985) (recognizing that in considering the “weight of the evidence” to decide whether the presumption is rebutted, “it may well be necessary to open up the issue of probable cause since that too is a question of evidentiary weight”). That makes sense, because the district court has considered the underlying merits of the charges based on different information and for a different purpose than the grand jury did. Such a defendant would be granted pre- trial release, but would still have to show up for trial.3 —————— 3 The majority cites cases in which courts have correctly rejected re- quests for a judicial redetermination of the grand jury’s probable cause 10 KALEY v. UNITED STATES ROBERTS, C. J., dissenting In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play. IV The majority is no more persuasive in applying the due process balancing test set forth in4 As an initial matter, the majority —————— finding for purposes of determining whether the rebuttable presumption of pretrial detention is triggered. See ante, at 8–9, n. 6. But those cases do not question the judge’s authority to consider the underlying merits of the Government’s case (including what the grand jury has alleged in the indictment) for purposes of determining whether that presumption has been rebutted. E.g., United States v. Dominguez, 783 F.2d 702, 706 (CA7 1986) (“evidence probative of guilt is admitted at a detention hearing only to support or challenge the weight of the gov- ernment’s case against the defendant”); see also United (releasing a defendant pretrial after determining that “the weight of the evidence now overcomes the presumption of detention”). The majority notes that this inquiry in the bail context is authorized by statute, but that does not alter the crucial point: Where the prosecutor seeks to use the indictment to impose another significant pretrial consequence on a defendant, judges are allowed to inquire into the underlying merits of the prosecution (includ- ing the very same matters the grand jury has considered) as part of the inquiry into whether that consequence is justified, and that has not resulted in “dissonance” or the undermining of the grand jury’s role. 4 Under our due process precedents, it is clear that the test applies in this case, rather than the inquiry set forth in Medina v. California, We held in Medina that is inapplicable when “assessing the validity of state procedural rules” that “are part of the criminal process.” We have therefore applied Medina rather than only when considering such due process challenges, including, for example, the allocation of burdens of proof or what type of evidence may be admitted. See, e.g., – Cite as: 571 U. S. (2014) 11 ROBERTS, C. J., dissenting gives short shrift to the Kaleys’ interests at stake. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 Whatever serious crimes the grand jury alleges the Kaleys committed, they are presumptively innocent of those charges until final judgment. Their right to vindicate that presumption by choosing the advocate they believe will best defend them is, as explained, at the very core of the Sixth Amendment. I suspect that, for the Kaleys, that right could hardly be more precious than it is now. In addition to potentially losing the property the Government has already frozen— including their home—the Kaleys face maximum prison terms of five years (18 U.S. C. ten years and 20 years for the charges in the superseding indictment. The indictment means they must stand trial on those charges. But the Kaleys plainly have an urgent interest in having their chosen counsel—who has worked with them since the grand jury’s investigation began, two years before the indictment—mount their best possible defense at trial. The majority alludes to our cases recognizing that in- dictments may result in the temporary deprivation of a defendant’s liberty without judicial review, and suggests that indictments therefore must also be “good enough” to deprive a defendant of property without judicial review. Ante, at 9–10. Even if this greater-includes-the-lesser —————— 446 (burden of proving incompetence to stand trial); ; (admissibility of testimony about a prior crime of which the defendant was acquitted). This case is not about such questions, but about the collateral issue of the pretrial deprivation of property a defendant needs to exercise his right to counsel of choice. therefore provides the relevant inquiry. 12 KALEY v. UNITED STATES ROBERTS, C. J., dissenting reasoning might be valid in other contexts, it is not when the property at issue is needed to hire chosen counsel. In the context of a prosecution for serious crimes, it is far from clear which interest is greater—the interest in tem- porary liberty pending trial, or the interest in using one’s available means to avoid imprisonment for many years after trial. Retaining one’s counsel of choice ensures the fundamental fairness of the actual trial, and thus may be far more valuable to a criminal defendant than pretrial release. As for the Government’s side, the Court echoes the Government’s concerns that a hearing would place de- mands on its resources and interfere with its desire to keep its trial strategy close to the vest. These concerns are somewhat curious in light of the majority’s emphasis on how easy it is to make a probable cause showing. And they are even more surprising in light of the extensive discovery obligations already imposed on the Government by Federal Rule of Criminal Procedure 16 and Brady v. Maryland, The emphasis the Gov- ernment places on pretrial secrecy evokes an outdated conception of the criminal trial as “a poker game in which players enjoy an absolute right always to conceal their cards until played.” (1970). Moreover, recall that the Government concedes that due process guarantees defendants a hearing to contest the traceability of the restrained assets to the charged con- duct. If a defendant requests such a hearing, the Gov- ernment will likely be required to reveal something about its case to demonstrate that the assets have the requisite connection to the charged offenses. In any event, these concerns are exaggerated. What the Government would be required to show in a pretrial re- straint hearing is similar to pretrial showings prosecutors make in other contexts on a daily basis. As mentioned Cite as: 571 U. S. (2014) 13 ROBERTS, C. J., dissenting when the Government seeks an order detaining a defendant pending trial, it routinely makes an extensive evidentiary showing—voluntarily disclosing much of its evidence and trial strategy—in support of that relief. See Brief for California Attorneys for Criminal Justice as Amicus Curiae 11–18. The Government makes similar showings in the context of other pretrial motions, such as motions to admit hearsay evidence under the co- conspirator exception, or to discover attorney-client com- munications made in furtherance of a future crime. at 19–28. In those contexts, as in this one, the decision how much to “show its hand” rests fully within the Government’s discretion. If it has a strong case and believes that pretrial restraint is necessary to preserve the assets for forfeit- ure, the Government may choose to make a strong evi- dentiary showing and have little concern about doing so. In a closer case, where the Government is more concerned about tipping its hand, it may elect to forgo a pretrial restraint of those assets the defendant needs to pay his counsel. I see no great burden on the Government in allowing it to strike this balance as it sees fit when consid- ering a pretrial asset restraint that would deprive a de- fendant of his right to counsel of choice. In the end, it is a bit much to argue that the Government has discretion to deprive a defendant—without a hearing—of the counsel he has chosen to present his defense, simply to avoid the mere possibility of a premature peek at some aspect of what the Government intends to do at trial. The majority also significantly underestimates the amount of control judges can exercise in these types of hearings. The Circuits that allow such hearings have afforded judges a great deal of flexibility in structuring them. Judges need not apply the Federal Rules of Evi- dence during the hearings, and they can take many steps, including in camera proceedings, to ensure that witness 14 KALEY v. UNITED STATES ROBERTS, C. J., dissenting safety and grand jury secrecy are fully preserved. See ; United Moreover, experience in the Second Circuit, where defendants have for more than 20 years been afforded the type of hearing the Kaleys seek, indicates that such hear- ings do not occur so often as to raise substantial concerns about taxing the resources of the Government and lower courts. See Brief for New York Council of Defense Law- yers as Amicus Curiae 4–9. As the majority notes, only 25 reported cases appear to have addressed such hearings. This relative rarity is unsurprising. To even be entitled to the hearing, defendants must first show a genuine need to use the assets to retain counsel of choice. See United (CA2 2013). And defendants too have an incentive not to tip their hands as to trial strategy—perhaps to an even greater extent than the Government, given that defendants bear comparatively few discovery obligations at a criminal trial. In light of the low bar of the probable cause stand- ard, many defendants likely conclude that the possible benefits of the hearing are not worth the candle. For those hearings that do occur, they are by all appear- ances ably controlled by district judges to keep them man- ageable and to limit the potential for excess or abuse. See Brief for New York Council of Defense Lawyers as Amicus Curiae 6–8. In addition, where such hearings are allowed, prosecutors and defense counsel often reach agreements concerning the scope and conditions of any protective order that accommodate the interests of both sides. See at 8–9. When the right at stake is as fundamental as hiring one’s counsel of choice—the “root meaning” of the Sixth Amendment, – 148—the Government’s interest in saving the time and expense of a limited number of such proceedings is not particularly compelling. Cite as: 571 U. S. (2014) 15 ROBERTS, C. J., dissenting The Government does have legitimate interests that are served by forfeiture of allegedly tainted assets. Caplin & Drysdale, (1989). And imposing a pretrial restraint on such assets does increase the likelihood that they will be available if the defendant is convicted.5 But that interest is protected in other ways that mitigate the concern that defendants will successfully divert forfeitable assets from the Gov- ernment’s reach if afforded a hearing. The relation-back provision in 21 U.S. C. §8(c) provides that title to for- feitable assets, once adjudged forfeitable, vests in the Government as of the time the offense was committed. Section 8(c) then provides that the Government may seek a “special verdict of forfeiture” as to any forfeited property that was subsequently transferred to a third party. The Government protests that recovery of such assets will often be complicated and subject to the vagar- ies of state law. Tr. of Oral Arg. 49–50. But such com- plaints of administrative inconvenience carry little weight in this particular context, when the Government knows exactly where the money has gone: to an attorney who is, after all, an officer of the court, and on notice that the Government claims title to the assets. And we are not talking about all of a defendant’s assets that are subject to forfeiture—only those that the defend- ant can show are necessary to secure his counsel of choice. —————— 5 The Government and the majority place particular emphasis on the use of forfeited assets to provide restitution to victims of crime. See Brief for United States 41–42, and n. 14; ante, at 2, n. 1. It is worth noting in this respect that in prosecuting the other sales representa- tives that participated with the Kaleys in the allegedly fraudulent conduct, the Government’s position as to who exactly is the “victim” has shifted frequently. See Brief for Petitioners 9–11 (hospitals); 21–23 (their employers); Tr. of Oral Arg. 43–44 (hospitals). As one prosecutor forthrightly acknowledged at the sentencing hearing of an alleged co-conspirator, “we can’t make restitution.” Brief for Petition- ers 11. 16 KALEY v. UNITED STATES ROBERTS, C. J., dissenting Here, for example, the Kaleys have identified as needed to pay counsel only a discrete portion of the assets the Gov- ernment seeks. The statistics cited by the Court on the total amount of assets recovered by the Government and provided as restitution for victims, ante, at 2, n. 1, are completely beside the point. The majority ultimately concludes that a pretrial hear- ing of the sort the Kaleys seek would be a waste of time. Ante, at 17–20. No. It takes little imagination to see that seizures based entirely on ex parte proceedings create a heightened risk of error. Common sense tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hear- ing from both sides. We have thus consistently recognized that the “fundamental instrument for judicial judgment” is “an adversary proceeding in which both parties may par- ticipate.” In the present context, some defendants (like the Kaleys) may be able to show that the theory of prosecution is legally defective through an argument that almost certainly was not presented to the grand jury. And as discussed at 13–15, prosecutors in some cases elect not to freeze needed assets, or they negotiate tailored protective orders to serve the interests of both sides—something they would be unlikely to do if the hearings were rote exercises. Given the risk of an erroneous restraint of assets needed to retain chosen counsel, the “probable value” of the “addi- tional safeguard” a pretrial hearing would provide is significant. That is because the right to counsel of choice is inherently transient, and the deprivation of that right effectively permanent. In our cases suggesting that little would be gained by requiring an adversary hearing on probable cause or imposing stricter evidentiary require- ments in grand jury proceedings, we have noted that the grand jury is not where the ultimate question of “the guilt Cite as: 571 U. S. (2014) 17 ROBERTS, C. J., dissenting or innocence of the accused is adjudicated.” United States v. Calandra, ; see United States v. Williams, (explaining that the grand jury hears only from the prosecutor because “ ‘the finding of an indictment is only in the nature of an en- quiry or accusation, which is afterwards to be tried and determined’ ” (quoting 4 W. Blackstone, Commentaries 300 (1769)). If the grand jury considers incomplete or incom- petent evidence in deciding to return an indictment, the defendant still has the full trial on the merits, with all its “formalities and safeguards,” Gerstein v. Pugh, 420 U.S. 103, 122 to prove his innocence. Here, by contrast, the Government seeks to use the grand jury’s probable cause determination to strip the Kaleys of their counsel of choice. The Kaleys can take no comfort that they will be able to vindicate that right in a future adversarial proceeding. Once trial begins with someone other than chosen counsel, the right is lost, and it cannot be restored based on what happens at trial. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” ). If the Kaleys are to have any opportunity to meaningfully challenge that deprivation, they must have it before the trial begins. * * * The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 18 KALEY v. UNITED STATES ROBERTS, C. J., dissenting The trial is governed by rules designed to ensure that, whatever the ultimate verdict, we can be confident to the extent possible that justice was done, within the bounds of the Constitution. That confidence is grounded in our belief in the adversary system. “The very premise of our adversary system of criminal justice is that partisan advo- cacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” 422 U.S. 8, Today’s decision erodes that confidence by permitting the Government to deprive a criminal defendant of his right to counsel of choice, without so much as a chance to be heard on why such a significant pretrial deprivation is unwarranted. The majority wraps up its analysis by blandly noting that Congress is of course free to extend broader protec- tion to criminal defendants. Ante, at 20. Not very likely. In this area it is to the courts that those charged with crime must turn. Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent

Justice Kennedy

majority

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

2018-06-13

https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4507882/

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” Ibid. One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” Id., at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” Id., at 152 (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. Ibid. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” Ibid. The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” Ibid. (emphasis deleted). B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” §24–34–601(1). CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§24–34–306, 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See §24–34–306(9). Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” §24–34–605. Colorado law does not permit the Commission to assess money damages or fines. §§24–34–306(9), 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, id., at 43. The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. Id., at 76. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court same-sex couples on this basis. Id., at 72. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” Id., at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” Id., at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id., at 879; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. Id., at 57a. The Commission ordered Phillips to “cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” Ibid. It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with . . . this Order.” Id., at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Ibid. Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, supra, at 879, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The Cite as: 584 U. S. ____ (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. ___ (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. ___ (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at ___ (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. ____ (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, §31 (2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. ____ (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Id., at 30. Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects against discrimina- tion on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. ____ (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.” Ibid. A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. ____ (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Id., at 534. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Id., at 547. Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” Id., at 540. In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” id., at 545, of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. Id., at 537. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is re- versed. It is so ordered. Cite as: 584 U. S. ____ (2018) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” –34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” Colorado law does not permit the Commission to assess money damages or fines. 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in September 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. (2018) 7 Opinion of the Court same-sex couples on this basis. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. ; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. at 57a. The Commission ordered Phillips to “cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with this Order.” at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or The Cite as: 584 U. S. (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” at (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See (per curiam); see also (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, (2012); At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects against discrimina- tion on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu 540– 542 (1993); (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries refuse[d] the patron’s request because of the offensive nature of the requested message.” A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. – (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is re- versed. It is so ordered. Cite as: 584 U. S. (2018) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–111 MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

Justice Kagan

concurring

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

2018-06-13

https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4507882/

“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” Ante, at 12. I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding. The Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.” Ante, at 14, 18. In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Ante, at 15; see post, at 3 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring religious reasons to baking a wedding cake for a same-sex couple—did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as be- tween the Jack cases and the Phillips case. See ante, at 15. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested “offensive [in] nature.” Ante, at 16 (inter- nal quotation marks omitted). As the Court states, a “principled rationale for the difference in treatment” can- not be “based on the government’s own assessment of offensiveness.” Ibid. What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. §24–34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay peo- ple and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoy- ment” of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious Cite as: 584 U. S. ____ (2018) 3 KAGAN, J., concurring belief.* I read the Court’s opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals)—“quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished.” Ante, at 15. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court —————— * JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” Post, at 4. That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrat- ing same-sex marriage.” Ibid.; see post, at 3, 6, 8–9. But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other stand- ard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with “religious significance.” Post, at 11. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disap- proves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5 (1968) (per curiam) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante, at 9. A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. For that reason, Colorado can treat a baker who discrimi- nates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur. Cite as: 584 U. S. ____ (2018) 1 GORSUCH, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” Ante, at 12. I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding. The Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.” Ante, at 14, 18. In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Ante, at 15; see post, at 3 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring religious reasons to baking a wedding cake for a same-sex couple—did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as be- tween the Jack cases and the Phillips case. See ante, at 15. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested “offensive [in] nature.” Ante, at 16 (inter- nal quotation marks omitted). As the Court states, a “principled rationale for the difference in treatment” can- not be “based on the government’s own assessment of offensiveness.” What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. –34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay peo- ple and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoy- ment” of public accommodations irrespective of their sexual orientation. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious Cite as: 584 U. S. (2018) 3 KAGAN, J., concurring belief.* I read the Court’s opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals)—“quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished.” Ante, at 15. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court —————— * JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” Post, at 4. That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrat- ing same-sex marriage.” ; see post, at 3, 6, 8–9. But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other stand- ard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with “religious significance.” Post, at 11. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disap- proves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., (per curiam) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante, at 9. A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. For that reason, Colorado can treat a baker who discrimi- nates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur. Cite as: 584 U. S. (2018) 1 GORSUCH, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–111 MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

Justice Ginsburg

dissenting

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

2018-06-13

https://www.courtlistener.com/opinion/4507882/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4507882/

There is much in the Court’s opinion with which I agree. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ” Ante, at 12. Gay persons may be spared from “indignities when they seek goods and services in an open market.” Ante, at 18.1 I —————— 1 As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. JUSTICE THOMAS acknowledges that for conduct to constitute protected expres- sion, the conduct must be reasonably understood by an observer to be communicative. Ante, at 4 (citing Clark v. Community for Creative 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction. The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.” Ante, at 17. This conclusion rests on evidence said to show the Colorado Civil Rights Commission’s (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted “disparate consideration of Phillips’ case compared to the cases of ” three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, at 18. The Court also finds hostility in statements made at two public hearings on Phillips’ appeal to the Commission. Ante, at 12–14. The different outcomes the Court features —————— Non-Violence, 468 U.S. 288, 294 (1984)). The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. See ante, at 5–6 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips “considers” and “sees” his work). But Phillips submitted no evidence showing that an objec- tive observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation of wedding cakes’ symbolism was forthcoming “even amongst those who might be expected to be the experts”); id., at 104–105 (the cake cutting tradition might signify “the bride and groom . . . as appropriating the cake” from the bride’s parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive con- duct. Cf. ante, at 7, n. 2 (THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 568–579 (1995) (citing previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington, 418 U.S. 405, 410 (1974) (observing the Court’s decades-long recognition of the symbolism of flags). Cite as: 584 U. S. ____ (2018) 3 GINSBURG, J., dissenting do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify re- versing the judgment below. I On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ” App. to Pet. for Cert. 319a; see id., at 300a, 310a. In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold. One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not dis- criminate” and “accept[s] all humans.” Id., at 301a (inter- nal quotation marks omitted). The second bakery owner 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.” Id., at 310a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the re- quested message. Id., at 319a.2 Jack filed charges against each bakery with the Colo- rado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treat- ment and denial of goods or services based on his Chris- tian religious beliefs. Id., at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for de- signs demeaning people whose dignity the Colorado Anti- discrimination Act (CADA) protects. See id., at 305a, 314a, 324a. The Commission summarily affirmed the Division’s no-probable-cause finding. See id., at 326a– 331a. The Court concludes that “the Commission’s considera- tion of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.” Ante, at 15. See also ante, at 5–7 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her reli- gion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell —————— 2 The record provides no ideological explanation for the bakeries’ re- fusals. Cf. ante, at 1–2, 9, 11 (GORSUCH, J., concurring) (describing Jack’s requests as offensive to the bakers’ “secular” convictions). Cite as: 584 U. S. ____ (2018) 5 GINSBURG, J., dissenting to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wed- ding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, at 3–4, 9–10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohib- its precisely the discrimination Craig and Mullins encoun- tered. See supra, at 1. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.3 The fact that Phillips might sell other cakes and cookies to gay and lesbian customers4 was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex —————— 3 JUSTICE GORSUCH argues that the situations “share all legally sa- lient features.” Ante, at 4 (concurring opinion). But what critically differentiates them is the role the customer’s “statutorily protected trait,” ibid., played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex wed- dings.” Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 3. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 4–6 (GORSUCH, J., concurring). 4 But see ante, at 7 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union). 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Chris- tian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 15. Nor was the Colorado Court of Appeals’ “difference in treatment of these two instances . . . based on the govern- ment’s own assessment of offensiveness.” Ante, at 16. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the re- quested product would literally display. As the Court recognizes, a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all.” Ante, at 2.5 The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages —————— 5 The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.” Ante, at 15. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be dis- cussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/ wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8–9 (GORSUCH, J., concur- ring); it is between a cake with a particular design and one whose form was never even discussed. Cite as: 584 U. S. ____ (2018) 7 GINSBURG, J., dissenting in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 (“The Division found that the bakeries did not refuse [Jack’s] request because of his creed, but rather because of the offensive nature of the requested mes- sage. . . . [T]here was no evidence that the bakeries based their decisions on [Jack’s] religion . . . [whereas Phillips] discriminat[ed] on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado Legisla- ture’s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 9–10. To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. II Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mul- lins. The proceedings involved several layers of independ- ent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a–6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for sum- mary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colo- 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting rado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526–528. * * * For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule

There is much in the Court’s opinion with which I agree. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, 0. “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ” Ante, 2. Gay persons may be spared from “indignities when they seek goods and services in an open market.” Ante, 8.1 I —————— 1 As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. JUSTICE THOMAS acknowledges that for conduct to constitute protected expres- sion, the conduct must be reasonably understood by an observer to be communicative. Ante, at 4 (citing Clark v. Community for Creative 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction. The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.” Ante, 7. This conclusion rests on evidence said to show the Colorado Civil Rights Commission’s (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted “disparate consideration of Phillips’ case compared to the cases of ” three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, 8. The Court also finds hostility in statements made at two public hearings on Phillips’ appeal to the Commission. Ante, 2–14. The different outcomes the Court features —————— Non-Violence, ). The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. See ante, at 5–6 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips “considers” and “sees” his work). But Phillips submitted no evidence showing that an objec- tive observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation of wedding cakes’ symbolism was forthcoming “even amongst those who might be expected to be the experts”); 04–105 (the cake cutting tradition might signify “the bride and groom as appropriating the cake” from the bride’s parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive con- duct. Cf. ante, at 7, n. 2 (THOMAS, J., concurring in part and concurring in judgment); (citing previous cases recognizing parades to be expressive); (noting precedents suggesting nude dancing is expressive conduct); 410 (1974) (observing the Court’s decades-long recognition of the symbolism of flags). Cite as: 584 U. S. (2018) 3 GINSBURG, J., dissenting do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify re- versing the judgment below. I On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ” App. to Pet. for Cert. 319a; see 00a, 310a. In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold. One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not dis- criminate” and “accept[s] all humans.” 01a (inter- nal quotation marks omitted). The second bakery owner 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.” 10a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the re- quested message. 19a.2 Jack filed charges against each bakery with the Colo- rado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treat- ment and denial of goods or services based on his Chris- tian religious beliefs. at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for de- signs demeaning people whose dignity the Colorado Anti- discrimination Act (CADA) protects. See 05a, 314a, 324a. The Commission summarily affirmed the Division’s no-probable-cause finding. See 26a– 331a. The Court concludes that “the Commission’s considera- tion of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.” Ante, 5. See also ante, at 5–7 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her reli- gion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell —————— 2 The record provides no ideological explanation for the bakeries’ re- fusals. Cf. ante, –2, 9, 11 (GORSUCH, J., concurring) (describing Jack’s requests as offensive to the bakers’ “secular” convictions). Cite as: 584 U. S. (2018) 5 GINSBURG, J., dissenting to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wed- ding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, –4, 9–10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohib- its precisely the discrimination Craig and Mullins encoun- tered. See Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.3 The fact that Phillips might sell other cakes and cookies to gay and lesbian customers4 was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex —————— 3 JUSTICE GORSUCH argues that the situations “share all legally sa- lient features.” Ante, at 4 (concurring opinion). But what critically differentiates them is the role the customer’s “statutorily protected trait,” ib played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex wed- dings.” Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 4–6 (GORSUCH, J., concurring). 4 But see ante, at 7 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union). 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Chris- tian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, 5. Nor was the Colorado Court of Appeals’ “difference in treatment of these two instances based on the govern- ment’s own assessment of offensiveness.” Ante, 6. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the re- quested product would literally display. As the Court recognizes, a refusal “to design a special cake with words or images might be different from a refusal to sell any cake at all.” Ante, at 2.5 The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages —————— 5 The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.” Ante, 5. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be dis- cussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/ wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8–9 (GORSUCH, J., concur- ring); it is between a cake with a particular design and one whose form was never even discussed. Cite as: 584 U. S. (2018) 7 GINSBURG, J., dissenting in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 (“The Division found that the bakeries did not refuse [Jack’s] request because of his creed, but rather because of the offensive nature of the requested mes- sage. [T]here was no evidence that the bakeries based their decisions on [Jack’s] religion [whereas Phillips] discriminat[ed] on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado Legisla- ture’s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 9–10. To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, 0. II Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mul- lins. The proceedings involved several layers of independ- ent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a–6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for sum- mary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colo- 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting rado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see at 526–528. * * * For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule

Justice Alito

concurring

Romag Fasteners, Inc. v. Fossil, Inc.

2020-04-23

https://www.courtlistener.com/opinion/4747779/romag-fasteners-inc-v-fossil-inc/

https://www.courtlistener.com/api/rest/v3/clusters/4747779/

We took this case to decide whether willful infringement is a prerequisite to an award of profits under 15 U.S. C. §1117(a). The decision below held that willfulness is such a prerequisite. App. to Pet. for Cert. 32a. That is incorrect. The relevant authorities, particularly pre-Lanham Act case law, show that willfulness is a highly important considera- tion in awarding profits under §1117(a), but not an absolute precondition. I would so hold and concur on that ground. Cite as: 590 U. S. ____ (2020) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 18–1233 _________________ ROMAG FASTENERS, INC., PETITIONER v. FOSSIL, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [April 23, 2020] JUSTICE SOTOMAYOR, concurring in the judgment. I agree that 15 U.S. C. §1117(a) does not impose a “will- fulness” prerequisite for awarding profits in trademark in- fringement actions. Courts of equity, however, defined “willfulness” to encompass a range of culpable mental states—including the equivalent of recklessness, but ex- cluding “good faith” or negligence. See 5 McCarthy on Trademarks and Unfair Competition §30:62 (5th ed. 2019) (explaining that “willfulness” ranged from fraudulent and knowing to reckless and indifferent behavior); see also, e.g., Lawrence-Williams Co. v. Societe Enfants Gombault et Cie, 52 F.2d 774, 778 (CA6 1931); Regis v. Jaynes, 191 Mass. 245, 248–249, 77 N.E. 774, 776 (1906). The majority suggests that courts of equity were just as likely to award profits for such “willful” infringement as they were for “innocent” infringement. Ante, at 5–6. But that does not reflect the weight of authority, which indi- cates that profits were hardly, if ever, awarded for innocent infringement. See, e.g., Wood v. Peffer, 55 Cal. App. 2d 116, 125 (1942) (explaining that “equity constantly refuses, for want of fraudulent intent, the prayer for an accounting of profits”); Globe-Wernicke Co. v. Safe-Cabinet Co., 110 Ohio St. 609, 617, 144 N.E. 711, 713 (1924) (“By the great weight of authority, particularly where the infringement . . . was 2 ROMAG FASTENERS, INC. v. FOSSIL, INC. SOTOMAYOR, J., concurring in judgment deliberate and willful, it is held that the wrongdoer is re- quired to account for all profits realized by him as a result of his wrongful acts”); Dickey v. Mutual Film Corp., 186 A.D. 701, 702, 174 N. Y. S. 784 (1919) (declining to award profits because there was “no proof of any fraudulent intent upon the part of the defendant”); Standard Cigar Co. v. Goldsmith, 58 Pa. Super. 33, 37 (1914) (reasoning that a defendant “should be compelled to account for . . . profits” where “the infringement complained of was not the result of mistake or ignorance of the plaintiff ’s right”). Nor would doing so seem to be consistent with longstanding equitable principles which, after all, seek to deprive only wrongdoers of their gains from misconduct. Cf. Duplate Corp. v. Triplex Safety Glass Co., 298 U.S. 448, 456–457 (1936). Thus, a district court’s award of profits for innocent or good-faith trademark infringement would not be consonant with the “principles of equity” referenced in §1117(a) and reflected in the cases the majority cites. Ante at 6–7. Because the majority is agnostic about awarding profits for both “willful” and innocent infringement as those terms have been understood, I concur in the judgment only

We took this case to decide whether willful infringement is a prerequisite to an award of profits under 15 U.S. C. The decision below held that willfulness is such a prerequisite. App. to Pet. for Cert. 32a. That is incorrect. The relevant authorities, particularly pre-Lanham Act case law, show that willfulness is a highly important considera- tion in awarding profits under but not an absolute precondition. I would so hold and concur on that ground. Cite as: 590 U. S. (2020) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 18–1233 ROMAG FASTENERS, INC., PETITIONER v. FOSSIL, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [April 23, 2020] JUSTICE SOTOMAYOR, concurring in the judgment. I agree that 15 U.S. C. does not impose a “will- fulness” prerequisite for awarding profits in trademark in- fringement actions. Courts of equity, however, defined “willfulness” to encompass a range of culpable mental states—including the equivalent of recklessness, but ex- cluding “good faith” or negligence. See 5 McCarthy on Trademarks and Unfair Competition (5th ed. 2019) (explaining that “willfulness” ranged from fraudulent and knowing to reckless and indifferent behavior); see also, e.g., Lawrence-Williams ; The majority suggests that courts of equity were just as likely to award profits for such “willful” infringement as they were for “innocent” infringement. Ante, at 5–6. But that does not reflect the weight of authority, which indi- cates that profits were hardly, if ever, awarded for innocent infringement. See, e.g., 125 (1942) (explaining that “equity constantly refuses, for want of fraudulent intent, the prayer for an accounting of profits”); Globe-Wernicke (“By the great weight of authority, particularly where the infringement was 2 ROMAG FASTENERS, INC. v. FOSSIL, INC. SOTOMAYOR, J., concurring in judgment deliberate and willful, it is held that the wrongdoer is re- quired to account for all profits realized by him as a result of his wrongful acts”); Dickey v. Mutual Film Corp., 186 A.D. 701, 702, 174 N. Y. S. 784 (1919) (declining to award profits because there was “no proof of any fraudulent intent upon the part of the defendant”); Standard Cigar Co. v. Goldsmith, (reasoning that a defendant “should be compelled to account for profits” where “the infringement complained of was not the result of mistake or ignorance of the plaintiff ’s right”). Nor would doing so seem to be consistent with longstanding equitable principles which, after all, seek to deprive only wrongdoers of their gains from misconduct. Cf. Duplate Thus, a district court’s award of profits for innocent or good-faith trademark infringement would not be consonant with the “principles of equity” referenced in and reflected in the cases the majority cites. Ante at 6–7. Because the majority is agnostic about awarding profits for both “willful” and innocent infringement as those terms have been understood, I concur in the judgment only

Justice Scalia

majority

Oncale v. Sundowner Offshore Services, Inc.

1998-03-04

https://www.courtlistener.com/opinion/118181/oncale-v-sundowner-offshore-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118181/

1997-037

This case presents the question whether workplace harassment can violate Title VII's prohibition against "discriminat[ion] . . . because of . . . sex," 42 U.S. C. § 2000e—2(a)(1), when the harasser and the harassed employee are of the same sex. I The District Court having granted summary judgment for respondents, we must assume the facts to be as alleged by petitioner Joseph Oncale. The precise details are irrelevant *77 to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally. In late October 1991, Oncale was working for respondent Sundowner Offshore Services, Inc., on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roundabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen, and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. Oncale's complaints to supervisory personnel produced no remedial action; in fact, the company's Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him all the time too," and called him a name suggesting homosexuality. Id., at 77. Oncale eventually quit—asking that his pink slip reflect that he "voluntarily left due to sexual harassment and verbal abuse." Id., at 79. When asked at his deposition why he left Sundowner, Oncale stated: "I felt that if I didn't leave my job, that I would be raped or forced to have sex." Id., at 71. Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. Relying on the Fifth Circuit's decision in Garcia v. Elf Atochem North America, 28 F.3d 446, 451-452 (1994), the District Court held that "Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." App. 106. On appeal, a panel of the Fifth Circuit concluded that Garcia was binding Circuit precedent, and affirmed. 83 F.3d 118 (1996). We granted certiorari. 520 U.S. 1263 (1997). *78 II Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, as amended, 42 U.S. C. § 2000e—2(a)(1). We have held that this not only covers "terms" and "conditions" in the narrow contractual sense, but "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (citations and internal quotation marks omitted). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). Title VII's prohibition of discrimination "because of . . . sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983), and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." Castaneda v. Partida, 430 U.S. 482, 499 (1977). See also id., at 515-516, n. 6 (Powell, J., joined by Burger, C. J., and Rehnquist, J., dissenting). In Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987), a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. Although *79 we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. See id., at 624-625. If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination "because of . . . sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Courts have had little trouble with that principle in cases like Johnson, where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a "hostile environment" sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e. g., Goluszek v. H. P. Smith, 697 F. Supp. 1452 (ND Ill. 1988). Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (CA4 1996), with Wrightson v. Pizza Hut of America, 99 F.3d 138 (CA4 1996). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations. See Doe v. Belleville, 119 F.3d 563 (CA7 1997). We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discriminat[ion] *80 . . . because of . . . sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat[ion] . . . because of . . . sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, supra, at 25 (Ginsburg, J., concurring). Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct *81 comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] . . . because of . . . sex." And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in Meritor and Harris, the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview." Harris, 510 U. S., at 21, citing Meritor, 477 U. S., at 67. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory "conditions of employment." We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." Harris, supra, at 23. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The *82 real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. III Because we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case presents the question whether workplace harassment can violate Title VII's prohibition against "discriminat[ion] because of sex," 42 U.S. C. 2000e—2(a)(1), when the harasser and the harassed employee are of the same sex. I The District Court having granted summary judgment for respondents, we must assume the facts to be as alleged by petitioner Joseph Oncale. The precise details are irrelevant *77 to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally. In late October 1991, Oncale was working for respondent Sundowner Offshore Services, Inc., on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roundabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen, and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. Oncale's complaints to supervisory personnel produced no remedial action; in fact, the company's Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him all the time too," and called him a name suggesting homosexuality. Oncale eventually quit—asking that his pink slip reflect that he "voluntarily left due to sexual harassment and verbal abuse." When asked at his deposition why he left Sundowner, Oncale stated: "I felt that if I didn't leave my job, that I would be raped or forced to have sex." Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. Relying on the Fifth Circuit's decision in the District Court held that "Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." App. 106. On appeal, a panel of the Fifth Circuit concluded that Garcia was binding Circuit precedent, and affirmed. We granted certiorari. *78 II Title VII of the Civil Rights Act of 19 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." as amended, 42 U.S. C. 2000e—2(a)(1). We have held that this not only covers "terms" and "conditions" in the narrow contractual sense, but "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Savings Bank, "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Title VII's prohibition of discrimination "because of sex" protects men as well as women, Newport News Shipbuilding & Dry Dock and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." See also In a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. Although *79 we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. See If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination "because of sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Courts have had little trouble with that principle in cases like Johnson, where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a "hostile environment" sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e. g., Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare with Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations. See We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discriminat[ion] *80 because of sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat[ion] because of sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct *81 comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] because of sex." And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in and the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview." 510 U. S., at citing We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory "conditions of employment." We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The *82 real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. III Because we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

concurring

Oncale v. Sundowner Offshore Services, Inc.

1998-03-04

https://www.courtlistener.com/opinion/118181/oncale-v-sundowner-offshore-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118181/

1997-037

I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination "because of . . . sex."

I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination "because of sex."

Justice Scalia

majority

Summers v. Earth Island Institute

2009-03-03

https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/

https://www.courtlistener.com/api/rest/v3/clusters/145904/

2008-027

Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as "Earth Island.") They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations. I In 1992, Congress enacted the Forest Service Decisionmaking and Appeals Reform Act (Appeals Reform Act or Act), Pub.L. 102-381, Tit. III, § 322, 106 Stat. 1419, note following 16 U.S.C. § 1612. Among other things, this required the Forest Service to establish a notice, comment, and appeal process for "proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974." Ibid. The Forest Service's regulations implementing the Act provided that certain of its procedures would not be applied to projects that the Service considered categorically excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA). 36 CFR §§ 215.4(a) (notice and comment), 215.12(f) (appeal) (2008). Later amendments to the Forest Service's manual of implementing procedures, adopted by rule after notice and comment, provided that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and thus would be categorically exempt from the requirement to file an EIS or EA. 68 Fed.Reg. 33824 (2003) (Forest Service Handbook (FSH) 1909.15, ch. 30, § 31.2(11)); 68 Fed. Reg. 44607 (FSH 1909.15, ch. 30, § 31.2(13)). This had the effect of excluding these projects from the notice, comment, and appeal process. In the summer of 2002, fire burned a significant area of the Sequoia National Forest. In September 2003, the Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Pursuant to its categorical exclusion of *1148 salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available. In December 2003, respondents filed a complaint in the Eastern District of California, challenging the failure of the Forest Service to apply to the Burnt Ridge Project § 215.4(a) of its regulations implementing the Appeals Reform Act (requiring prior notice and comment), and § 215.12(f) of the regulations (setting forth an appeal procedure). The complaint also challenged six other Forest Service regulations implementing the Act that were not applied to the Burnt Ridge Project. They are irrelevant to this appeal. The District Court granted a preliminary injunction against the Burnt Ridge salvage-timber sale. Soon thereafter, the parties settled their dispute over the Burnt Ridge Project and the District Court concluded that "the Burnt Ridge timber sale is not at issue in this case." Earth Island Inst. v. Pengilly, 376 F. Supp. 2d 994, 999 (E.D.Cal.2005). The Government argued that, with the Burnt Ridge dispute settled, and with no other project before the court in which respondents were threatened with injury in fact, respondents lacked standing to challenge the regulations; and that absent a concrete dispute over a particular project a challenge to the regulations would not be ripe. The District Court proceeded, however, to adjudicate the merits of Earth Island's challenges. It invalidated five of the regulations (including §§ 215.4(a) and 215.12(f)), id., at 1011, and entered a nationwide injunction against their application, Earth Island Inst. v. Ruthenbeck, No. CIV F-03-6386 JKS, 2005 WL 5280466 *2 (Sept. 20, 2005). The Ninth Circuit held that Earth Island's challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient `case or controversy'" before the court to sustain a facial challenge. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 696 (2007) (amended opinion). It affirmed, however, the District Court's determination that §§ 215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The Government sought review of the question whether Earth Island could challenge the regulations at issue in the Burnt Ridge Project, and if so whether a nationwide injunction was appropriate relief. We granted certiorari, 552 U.S. ___, 128 S. Ct. 1118, 169 L. Ed. 2d 846 (2008). II In limiting the judicial power to "Cases" and "Controversies," Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law. Except when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992); Los Angeles v. Lyons, 461 U.S. 95, 111-112, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). This limitation "is founded in concern about the proper—and properly limited— role of the courts in a democratic society." Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). See United States v. Richardson, 418 U.S. 166, 179, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). *1149 The doctrine of standing is one of several doctrines that reflect this fundamental limitation. It requires federal courts to satisfy themselves that "the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction." 422 U.S., at 498-499, 95 S. Ct. 2197. He bears the burden of showing that he has standing for each type of relief sought. See Lyons, supra, at 105, 103 S. Ct. 1660. To seek injunctive relief, a plaintiff must show that he is under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). This requirement assures that "there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party," Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974). Where that need does not exist, allowing courts to oversee legislative or executive action "would significantly alter the allocation of power ... away from a democratic form of government," Richardson, supra, at 188, 94 S. Ct. 2940 (Powell, J., concurring). The regulations under challenge here neither require nor forbid any action on the part of respondents. The standards and procedures that they prescribe for Forest Service appeals govern only the conduct of Forest Service officials engaged in project planning. "[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily `substantially more difficult' to establish." Defenders of Wildlife, supra, at 562, 112 S. Ct. 2130. Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described above. It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Club v. Morton, 405 U.S. 727, 734-736, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Affidavits submitted to the District Court alleged that organization member Ara Marderosian had repeatedly visited the Burnt Ridge site, that he had imminent plans to do so again, and that his interests in viewing the flora and fauna of the area would be harmed if the Burnt Ridge Project went forward without incorporation of the ideas he would have suggested if the Forest Service had provided him an opportunity to comment. The Government concedes this was sufficient to establish Article III standing with respect to Burnt Ridge. Brief for Petitioners 28. Marderosian's threatened injury with regard to that project was originally one of the bases for the present suit. After the District Court had issued a preliminary injunction, however, the parties settled their differences on that score. Marderosian's injury in fact with regard to that project has been remedied, and it is, as the District Court pronounced, "not at issue in this case." 376 F. Supp. 2d, at 999. We know of no precedent for the proposition that when a *1150 plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III's injury-in-fact requirement. See Lyons, supra, at 111, 103 S. Ct. 1660. Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members. The only other affidavit relied on was that of Jim Bensman.[*] He asserted, first, that he had suffered injury in the past from development on Forest Service land. That does not suffice for several reasons: because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to be enjoined. Bensman's affidavit further asserts that he has visited many National Forests and plans to visit several unnamed National Forests in the future. Respondents describe this as a mere failure to "provide the name of each timber sale that affected [Bensman's] interests," Brief for Respondents 44. It is much more (or much less) than that. It is a failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the National Forests. The National Forests occupy more than 190 million acres, an area larger than Texas. See Meet the Forest Service, http://www.fs.fed.us/aboutus/ meetfs.shtml (as visited Feb. 27, 2009, and available in Clerk of Court's case file). There may be a chance, but is hardly a likelihood, that Bensman's wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification it is impossible to tell which projects are (in respondents' view) unlawfully subject to the regulations. The allegations here present a weaker likelihood of concrete harm than that which we found insufficient in Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675, where a plaintiff who alleged that he had been injured by an improper police chokehold sought injunctive relief barring use of the hold in the future. We said it was "no more than conjecture" that Lyons would be subjected to that chokehold upon a later encounter. Id., at 108, 103 S. Ct. 1660. Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact. The Bensman affidavit does refer specifically to a series of projects in the Allegheny National Forest that are subject to the challenged regulations. It does not assert, however, any firm intention to visit their locations, saying only that Bensman "`want[s] to'" go there. Brief for Petitioners 6. This vague desire to return is *1151 insufficient to satisfy the requirement of imminent injury: "Such `some day' intentions—without any description of concrete plans, or indeed any specification of when the some day will be—do not support a finding of the `actual or imminent' injury that our cases require." Defenders of Wildlife, 504 U.S., at 564, 112 S. Ct. 2130. Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing. Only a "person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Id., at 572, n. 7, 112 S. Ct. 2130 (emphasis added). Respondents alleged such injury in their challenge to the Burnt Ridge Project, claiming that but for the allegedly unlawful abridged procedures they would have been able to oppose the project that threatened to impinge on their concrete plans to observe nature in that specific area. But Burnt Ridge is now off the table. It makes no difference that the procedural right has been accorded by Congress. That can loosen the strictures of the redressability prong of our standing inquiry—so that standing existed with regard to the Burnt Ridge Project, for example, despite the possibility that Earth Island's allegedly guaranteed right to comment would not be successful in persuading the Forest Service to avoid impairment of Earth Island's concrete interests. See Ibid. Unlike redressability, however, the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute. "[I]t would exceed [Article III's] limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws.... [T]he party bringing suit must show that the action injures him in a concrete and personal way." Id., at 580-581[, 112 S. Ct. 2130] (KENNEDY, J., concurring in part and concurring in judgment). III The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "`700,000 members nationwide, including thousands of members in California'" who "`use and enjoy the Sequoia National Forest,'" post, at 1154 (opinion of BREYER, J.), it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service's procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. In Defenders of Wildlife, supra, at 563, 112 S. Ct. 2130, we held that the organization lacked standing because it failed to "submit affidavits ... showing, through specific facts ... that one or more of [its] members would ... be `directly' affected" *1152 by the allegedly illegal activity. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636, involved the same Sierra Club that is a party in the present case, and a project in the Sequoia National Forest. The principal difference from the present case is that the challenged project was truly massive, involving the construction of motels, restaurants, swimming pools, parking lots, and other structures on 80 acres of the Forest, plus ski lifts, ski trails, and a 20-mile access highway. We did not engage in an assessment of statistical probabilities that one of the Sierra Club's members would be adversely affected, but held that the Sierra Club lacked standing. We said: "The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents." Id., at 735, 92 S. Ct. 1361. And in FW/PBS, Inc. v. Dallas, 493 U.S. 215, 235, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990), we noted that the affidavit provided by the city to establish standing would be insufficient because it did not name the individuals who were harmed by the challenged license-revocation program. This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity. See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958) (all organization members affected by release of membership lists). A major problem with the dissent's approach is that it accepts the organizations' self-descriptions of their membership, on the simple ground that "no one denies" them, post, at 1156. But it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S. Ct. 1326, 89 L. Ed. 2d 501 (1986). Without individual affidavits, how is the court to assure itself that the Sierra Club, for example, has "`thousands of members'" who "`use and enjoy the Sequoia National Forest'"? And, because to establish standing plaintiffs must show that they "use the area affected by the challenged activity and not an area roughly in the vicinity of" a project site, Defenders of Wildlife, 504 U.S., at 566, 112 S. Ct. 2130 (internal quotation marks omitted), how is the court to assure itself that some of these members plan to make use of the specific sites upon which projects may take place? Or that these same individuals will find their recreation burdened by the Forest Service's use of the challenged procedures? While it is certainly possible— perhaps even likely—that one individual will meet all of these criteria, that speculation does not suffice. "Standing," we have said, "is not `an ingenious academic exercise in the conceivable' ... [but] requires... a factual showing of perceptible harm." Ibid. In part because of the difficulty of verifying the facts upon which such probabilistic standing depends, the Court has required plaintiffs claiming an organizational standing to identify members who have suffered the requisite harm—surely not a difficult task here, when so many thousands are alleged to have been harmed. The dissent would have us replace the requirement of "`imminent'" harm, which it acknowledges our cases establish, see post, at 1155, with the requirement of "`a realistic threat' that reoccurrence of the challenged activity would cause [the plaintiff] *1153 harm `in the reasonably near future,'" post, at 1156. That language is taken, of course, from an opinion that did not find standing, so the seeming expansiveness of the test made not a bit of difference. The problem for the dissent is that the timely affidavits no more meet that requirement than they meet the usual formulation. They fail to establish that the affiants' members will ever visit one of the small parcels at issue. The dissent insists, however, that we should also have considered the late-filed affidavits. It invokes Federal Rule of Civil Procedure 15(d) (West 2008 rev. ed.), which says that "[t]he court may permit supplementation even though the original pleading is defective in stating of a claim or defense." So also does Rule 21 permit joinder of parties "at any time." But the latter no more permits joinder of parties, than the former permits the supplementation of the record, in the circumstances here: after the trial is over, judgment has been entered, and a notice of appeal has been filed. The dissent cites no instance in which "supplementation" has been permitted to resurrect and alter the outcome in a case that has gone to judgment, and indeed after notice of appeal had been filed. If Rule 15(b) allows additional facts to be inserted into the record after appeal has been filed, we are at the threshold of a brave new world of trial practice in which Rule 60 has been swallowed whole by Rule 15(b). * * * Since we have resolved this case on the ground of standing, we need not reach the Government's contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act. We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents' challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part. It is so ordered.

Respondents are a group of organizations dedicated to protecting the environment. (We will refer to them collectively as "Earth Island.") They seek to prevent the United States Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions. We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations. I In Congress enacted the Forest Service Decisionmaking and Appeals Reform Act (Appeals Reform Act or Act), Tit. III, 322, note following 16 U.S.C. 1612. Among other things, this required the Forest Service to establish a notice, comment, and appeal process for "proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of" The Forest Service's regulations implementing the Act provided that certain of its procedures would not be applied to projects that the Service considered categorically excluded from the requirement to file an environmental impact statement (EIS) or environmental assessment (EA). 36 CFR 215.4(a) 215.12(f) (appeal) Later amendments to the Forest Service's manual of implementing procedures, adopted by rule after notice and comment, provided that fire-rehabilitation activities on areas of less than 4,200 acres, and salvage-timber sales of 250 acres or less, did not cause a significant environmental impact and thus would be categorically exempt from the requirement to file an EIS or EA. 68 Fed.Reg. 33824 (2003) (Forest Service Handbook (FSH) 1909.15, ch. 30, 31.2(11)); (FSH 1909.15, ch. 30, 31.2(13)). This had the effect of excluding these projects from the notice, comment, and appeal process. In the summer of 2002, fire burned a significant area of the Sequoia National Forest. In September 2003, the Service issued a decision memo approving the Burnt Ridge Project, a salvage sale of timber on 238 acres damaged by that fire. Pursuant to its categorical exclusion of *1148 salvage sales of less than 250 acres, the Forest Service did not provide notice in a form consistent with the Appeals Reform Act, did not provide a period of public comment, and did not make an appeal process available. In December 2003, respondents filed a complaint in the Eastern District of California, challenging the failure of the Forest Service to apply to the Burnt Ridge Project 215.4(a) of its regulations implementing the Appeals Reform Act (requiring prior notice and comment), and 215.12(f) of the regulations (setting forth an appeal procedure). The complaint also challenged six other Forest Service regulations implementing the Act that were not applied to the Burnt Ridge Project. They are irrelevant to this appeal. The District Court granted a preliminary injunction against the Burnt Ridge salvage-timber sale. Soon thereafter, the parties settled their dispute over the Burnt Ridge Project and the District Court concluded that "the Burnt Ridge timber sale is not at issue in this case." Earth Island The Government argued that, with the Burnt Ridge dispute settled, and with no other project before the court in which respondents were threatened with injury in fact, respondents lacked standing to challenge the regulations; and that absent a concrete dispute over a particular project a challenge to the regulations would not be ripe. The District Court proceeded, however, to adjudicate the merits of Earth Island's challenges. It invalidated five of the regulations (including 215.4(a) and 215.12(f)), and entered a nationwide injunction against their application, Earth Island The Ninth Circuit held that Earth Island's challenges to regulations not at issue in the Burnt Ridge Project were not ripe for adjudication because there was "not a sufficient `case or controversy'" before the court to sustain a facial challenge. Earth Island It affirmed, however, the District Court's determination that 215.4(a) and 215.12(f), which were applicable to the Burnt Ridge Project, were contrary to law, and upheld the nationwide injunction against their application. The Government sought review of the question whether Earth Island could challenge the regulations at issue in the Burnt Ridge Project, and if so whether a nationwide injunction was appropriate relief. We granted certiorari, 552 U.S. II In limiting the judicial power to "Cases" and "Controversies," Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law. Except when necessary in the execution of that function, courts have no charter to review and revise legislative and executive action. See ; Los This limitation "is founded in concern about the proper—and properly limited— role of the courts in a democratic society." See United *1149 The doctrine of standing is one of several doctrines that reflect this fundamental limitation. It requires federal courts to satisfy themselves that "the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction." 422 U.S., at -499, He bears the burden of showing that he has standing for each type of relief sought. See To seek injunctive relief, a plaintiff must show that he is under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. Friends of Earth, This requirement assures that "there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party," Where that need does not exist, allowing courts to oversee legislative or executive action "would significantly alter the allocation of power away from a democratic form of government," (Powell, J., concurring). The regulations under challenge here neither require nor forbid any action on the part of respondents. The standards and procedures that they prescribe for Forest Service appeals govern only the conduct of Forest Service officials engaged in project planning. "[W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily `substantially more difficult' to establish." Defenders of Here, respondents can demonstrate standing only if application of the regulations by the Government will affect them in the manner described above. It is common ground that the respondent organizations can assert the standing of their members. To establish the concrete and particularized injury that standing requires, respondents point to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice. Sierra Affidavits submitted to the District Court alleged that organization member Ara Marderosian had repeatedly visited the Burnt Ridge site, that he had imminent plans to do so again, and that his interests in viewing the flora and fauna of the area would be harmed if the Burnt Ridge Project went forward without incorporation of the ideas he would have suggested if the Forest Service had provided him an opportunity to comment. The Government concedes this was sufficient to establish Article III standing with respect to Burnt Ridge. Brief for Petitioners 28. Marderosian's threatened injury with regard to that project was originally one of the bases for the present suit. After the District Court had issued a preliminary injunction, however, the parties settled their differences on that score. Marderosian's injury in fact with regard to that project has been remedied, and it is, as the District Court pronounced, "not at issue in this case." 376 F. Supp. 2d, at We know of no precedent for the proposition that when a *1150 plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests. Such a holding would fly in the face of Article III's injury-in-fact requirement. See Respondents have identified no other application of the invalidated regulations that threatens imminent and concrete harm to the interests of their members. The only other affidavit relied on was that of Jim Bensman.[*] He asserted, first, that he had suffered injury in the past from development on Forest Service land. That does not suffice for several reasons: because it was not tied to application of the challenged regulations, because it does not identify any particular site, and because it relates to past injury rather than imminent future injury that is sought to be enjoined. Bensman's affidavit further asserts that he has visited many National Forests and plans to visit several unnamed National Forests in the future. Respondents describe this as a mere failure to "provide the name of each timber sale that affected [Bensman's] interests," Brief for Respondents 44. It is much more (or much less) than that. It is a failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of Bensman's to enjoy the National Forests. The National Forests occupy more than 190 million acres, an area larger than Texas. See Meet the Forest Service, http://www.fs.fed.us/aboutus/ meetfs.shtml (as visited Feb. 27, 2009, and available in Clerk of Court's case file). There may be a chance, but is hardly a likelihood, that Bensman's wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations. Indeed, without further specification it is impossible to tell which projects are (in respondents' view) unlawfully subject to the regulations. The allegations here present a weaker likelihood of concrete harm than that which we found insufficient in where a plaintiff who alleged that he had been injured by an improper police chokehold sought injunctive relief barring use of the hold in the future. We said it was "no more than conjecture" that would be subjected to that chokehold upon a later encounter. Here we are asked to assume not only that Bensman will stumble across a project tract unlawfully subject to the regulations, but also that the tract is about to be developed by the Forest Service in a way that harms his recreational interests, and that he would have commented on the project but for the regulation. Accepting an intention to visit the National Forests as adequate to confer standing to challenge any Government action affecting any portion of those forests would be tantamount to eliminating the requirement of concrete, particularized injury in fact. The Bensman affidavit does refer specifically to a series of projects in the Allegheny National Forest that are subject to the challenged regulations. It does not assert, however, any firm intention to visit their locations, saying only that Bensman "`want[s] to'" go there. Brief for Petitioners 6. This vague desire to return is *1151 insufficient to satisfy the requirement of imminent injury: "Such `some day' intentions—without any description of concrete plans, or indeed any specification of when the some day will be—do not support a finding of the `actual or imminent' injury that our cases require." Defenders of Respondents argue that they have standing to bring their challenge because they have suffered procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing. Only a "person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." (emphasis added). Respondents alleged such injury in their challenge to the Burnt Ridge Project, claiming that but for the allegedly unlawful abridged procedures they would have been able to oppose the project that threatened to impinge on their concrete plans to observe nature in that specific area. But Burnt Ridge is now off the table. It makes no difference that the procedural right has been accorded by Congress. That can loosen the strictures of the redressability prong of our standing inquiry—so that standing existed with regard to the Burnt Ridge Project, for example, despite the possibility that Earth Island's allegedly guaranteed right to comment would not be successful in persuading the Forest Service to avoid impairment of Earth Island's concrete interests. See Unlike redressability, however, the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute. "[I]t would exceed [Article III's] limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws. [T]he party bringing suit must show that the action injures him in a concrete and personal way." [, ] (KENNEDY, J., concurring in part and concurring in judgment). III The dissent proposes a hitherto unheard-of test for organizational standing: whether, accepting the organization's self-description of the activities of its members, there is a statistical probability that some of those members are threatened with concrete injury. Since, for example, the Sierra Club asserts in its pleadings that it has more than "`700,000 members nationwide, including thousands of members in California'" who "`use and enjoy the Sequoia National Forest,'" post, at 1154 (opinion of BREYER, J.), it is probable (according to the dissent) that some (unidentified) members have planned to visit some (unidentified) small parcels affected by the Forest Service's procedures and will suffer (unidentified) concrete harm as a result. This novel approach to the law of organizational standing would make a mockery of our prior cases, which have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. In Defenders of we held that the organization lacked standing because it failed to "submit affidavits showing, through specific facts that one or more of [its] members would be `directly' affected" *1152 by the allegedly illegal activity. Morton, involved the same Sierra Club that is a party in the present case, and a project in the Sequoia National Forest. The principal difference from the present case is that the challenged project was truly massive, involving the construction of motels, restaurants, swimming pools, parking lots, and other structures on 80 acres of the Forest, plus ski lifts, ski trails, and a 20-mile access highway. We did not engage in an assessment of statistical probabilities that one of the Sierra Club's members would be adversely affected, but held that the Sierra Club lacked standing. We said: "The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents." And in FW/PBS, we noted that the affidavit provided by the city to establish standing would be insufficient because it did not name the individuals who were harmed by the challenged license-revocation program. This requirement of naming the affected members has never been dispensed with in light of statistical probabilities, but only where all the members of the organization are affected by the challenged activity. See, e.g., A major problem with the dissent's approach is that it accepts the organizations' self-descriptions of their membership, on the simple ground that "no one denies" them, post, at 1156. But it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties. Without individual affidavits, how is the court to assure itself that the Sierra Club, for example, has "`thousands of members'" who "`use and enjoy the Sequoia National Forest'"? And, because to establish standing plaintiffs must show that they "use the area affected by the challenged activity and not an area roughly in the vicinity of" a project site, Defenders of (internal quotation marks omitted), how is the court to assure itself that some of these members plan to make use of the specific sites upon which projects may take place? Or that these same individuals will find their recreation burdened by the Forest Service's use of the challenged procedures? While it is certainly possible— perhaps even likely—that one individual will meet all of these criteria, that speculation does not suffice. "Standing," we have said, "is not `an ingenious academic exercise in the conceivable' [but] requires. a factual showing of perceptible harm." In part because of the difficulty of verifying the facts upon which such probabilistic standing depends, the Court has required plaintiffs claiming an organizational standing to identify members who have suffered the requisite harm—surely not a difficult task here, when so many thousands are alleged to have been harmed. The dissent would have us replace the requirement of "`imminent'" harm, which it acknowledges our cases establish, see post, at 1155, with the requirement of "`a realistic threat' that reoccurrence of the challenged activity would cause [the plaintiff] *1153 harm `in the reasonably near future,'" post, at 1156. That language is taken, of course, from an opinion that did not find standing, so the seeming expansiveness of the test made not a bit of difference. The problem for the dissent is that the timely affidavits no more meet that requirement than they meet the usual formulation. They fail to establish that the affiants' members will ever visit one of the small parcels at issue. The dissent insists, however, that we should also have considered the late-filed affidavits. It invokes Federal Rule of Civil Procedure 15(d) (West rev. ed.), which says that "[t]he court may permit supplementation even though the original pleading is defective in stating of a claim or defense." So also does Rule 21 permit joinder of parties "at any time." But the latter no more permits joinder of parties, than the former permits the supplementation of the record, in the circumstances here: after the trial is over, judgment has been entered, and a notice of appeal has been filed. The dissent cites no instance in which "supplementation" has been permitted to resurrect and alter the outcome in a case that has gone to judgment, and indeed after notice of appeal had been filed. If Rule 15(b) allows additional facts to be inserted into the record after appeal has been filed, we are at the threshold of a brave new world of trial practice in which Rule 60 has been swallowed whole by Rule 15(b). * * * Since we have resolved this case on the ground of standing, we need not reach the Government's contention that plaintiffs have not demonstrated that the regulations are ripe for review under the Administrative Procedure Act. We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate. And we do not disturb the dismissal of respondents' challenge to the remaining regulations, which has not been appealed. The judgment of the Court of Appeals is reversed in part and affirmed in part. It is so ordered.

Justice Kennedy

concurring

Summers v. Earth Island Institute

2009-03-03

https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/

https://www.courtlistener.com/api/rest/v3/clusters/145904/

2008-027

I join in full the opinion of the Court. As the opinion explains, "deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing." Ante, at 1151. The procedural injury must "impair a separate concrete interest." Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). This case would present different considerations if Congress had sought to provide redress for a concrete injury "giv[ing] rise to a case or controversy where none existed before." Id., at 580, 112 S. Ct. 2130 (KENNEDY, J., concurring in part and concurring in judgment). Nothing in the statute at issue here, however, indicates Congress intended to identify or confer some interest separate and apart from a procedural right.

I join in full the opinion of the Court. As the opinion explains, "deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing." Ante, at 1151. The procedural injury must "impair a separate concrete interest." This case would present different considerations if Congress had sought to provide redress for a concrete injury "giv[ing] rise to a case or controversy where none existed before." (KENNEDY, J., concurring in part and concurring in judgment). Nothing in the statute at issue here, however, indicates Congress intended to identify or confer some interest separate and apart from a procedural right.

Justice Breyer

dissenting

Summers v. Earth Island Institute

2009-03-03

https://www.courtlistener.com/opinion/145904/summers-v-earth-island-institute/

https://www.courtlistener.com/api/rest/v3/clusters/145904/

2008-027

The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any "`concrete injury'" when the Forest Service sells timber for logging on "many thousands" of small (250-acre or less) woodland parcels without following legally required procedures—procedures which, if followed, could lead the Service to cancel or to modify the sales. Ante, at 1151. *1154 Nothing in the record or the law justifies this counterintuitive conclusion. I A The plaintiffs, respondents in this case, are five environmental organizations. The Earth Island Institute, a California organization, has over 15,000 members in the United States, over 3,000 of whom "use and enjoy the National Forests of California for recreational, educational, aesthetic, spiritual and other purposes." Corrected Complaint for Declaratory and Injunctive Relief in Case No. CIV-F-03-630 REC DLB (ED Cal.) ¶ 8, App. 31 (hereinafter Complaint). The Sequoia ForestKeeper, a small organization, has "100 plus" members who "use the forests of the Southern Sierra Nevada for activities such as hiking, bird and animal watching, aesthetic enjoyment, quiet contemplation, fishing and scientific study." Id., ¶ 9, at 32. Heartwood, Inc., located in Illinois and Indiana, is a coalition of environmental organizations with "members" who "continually use the National Forests for the purposes of ecological health, recreation, aesthetic enjoyment, and other purposes." Id., ¶ 10, at 33. The Center for Biological Diversity, located in Arizona, California, New Mexico, and Washington, has over 5,000 members who "use Forest Service lands," and who are "dedicated to the preservation, protection, and restoration of biological diversity, native species and ecosystems in the Western United States and elsewhere." Ibid., ¶ 11. The Sierra Club has more than "700,000 members nationwide, including thousands of members in California" who "use and enjoy the Sequoia National Forest," for "outdoor recreation and scientific study of various kinds, including nature study, bird-watching, photography, fishing, canoeing, hunting, backpacking, camping, solitude, and a variety of other activities." Id., ¶ 12, at 34. These five organizations point to a federal law that says the Forest Service "shall establish a notice and comment process," along with a procedure for filing administrative "appeals," for "proposed actions... concerning projects and activities implementing land and resource management plans ...." § 322, 106 Stat. 1419, note following 16 U.S.C. § 1612. They add that the Service has exempted from "notice, comment, and appeal" processes its decisions that allow, among other things, salvage-timber sales on burned forest lands of less than 250 acres in size. 36 CFR §§ 215.4(a), 215.12(f) (2008); see also 68 Fed.Reg. 44607-44608 (2003) (describing projects exempted). And they claim that the Service's refusal to provide notice, comment, and appeal procedures violates the statute. Complaint ¶¶ 105-106, App. 61. B The majority says that the plaintiffs lack constitutional standing to raise this claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete "Cas[e]" or "Controvers[y]" that the Constitution grants federal courts the power to resolve. Art. III, § 2, cl. 1. I cannot agree that this is so. To understand the constitutional issue that the majority decides, it may prove helpful to imagine that Congress enacted a statutory provision that expressly permitted environmental groups like the respondents here to bring cases just like the present one, provided (1) that the group has members who have used salvage-timber parcels in the past and are likely to do so in the future, and (2) that the group's members have opposed Forest Service *1155 timber sales in the past (using notice, comment, and appeal procedures to do so) and will likely use those procedures to oppose salvage-timber sales in the future. The majority cannot, and does not, claim that such a statute would be unconstitutional. See Massachusetts v. EPA, 549 U.S. 497, 516-518, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007); Sierra Club v. Morton, 405 U.S. 727, 734-738, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). How then can it find the present case constitutionally unauthorized? I believe the majority answers this question as follows: It recognizes, as this Court has held, that a plaintiff has constitutional standing if the plaintiff demonstrates (1) an "`injury in fact,'" (2) that is "fairly traceable" to the defendant's "challenged action," and which (3) a "favorable [judicial] decision" will likely prevent or redress. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). The majority does not deny that the plaintiffs meet the latter two requirements. It focuses only upon the first, the presence of "actual," as opposed to "conjectural or hypothetical," injury. Id., at 180, 120 S. Ct. 693. In doing so, it properly agrees that the "organizations" here can "assert the standing of their members." Ante, at 1149. It points out that injuries to the "members' recreational" or even "mere esthetic interests... will suffice." Ibid. It does not claim that the procedural nature of the plaintiffs' claim makes the difference here, for it says only that "deprivation of a procedural right without some concrete interest" thereby affected, i.e., "a procedural right in vacuo" would prove "insufficient to create Article III standing." Ante, at 1151 (emphasis added); see also EPA, 549 U.S., at 517-518, 127 S. Ct. 1438. The majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. Ante, at 1149-1150. To put the matter in terms of my hypothetical statute, the majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past (i.e., parcels that the Service does not subject to the notice, comment, and appeal procedures required by law), have failed to show that they have members likely to use such parcels in the future. II How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not "imminent"—a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. See Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726, 734, 118 S. Ct. 1665, 140 L. Ed. 2d 921 (1998). I concede that the Court has sometimes used the word "imminent" in the context of constitutional standing. But it has done so primarily to emphasize that the harm in question—the harm that was not "imminent"—was merely "conjectural" or "hypothetical" or otherwise speculative. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Where the Court has directly focused upon the matter, i.e., where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has *1156 asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. That is what the Court said in Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), a case involving a plaintiff's attempt to enjoin police use of chokeholds. The Court wrote that the plaintiff, who had been subject to the unlawful chokehold in the past, would have had standing had he shown "a realistic threat" that reoccurrence of the challenged activity would cause him harm "in the reasonably near future." Id., at 107, n. 7, 108, 103 S. Ct. 1660 (emphasis added). Precedent nowhere suggests that the "realistic threat" standard contains identification requirements more stringent than the word "realistic" implies. See Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982). How could the Court impose a stricter criterion? Would courts deny standing to a holder of a future interest in property who complains that a life tenant's waste of the land will almost inevitably hurt the value of his interest—though he will have no personal interest for several years into the future? Would courts deny standing to a landowner who complains that a neighbor's upstream dam constitutes a nuisance—even if the harm to his downstream property (while bound to occur) will not occur for several years? Would courts deny standing to an injured person seeking a protection order from future realistic (but nongeographically specific) threats of further attacks? To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, EPA's failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. EPA, 549 U.S., at 522-523, 127 S. Ct. 1438. The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations "in the reasonably near future." See Defendants' Motion to Clarify and Amend Judgment in No. CIV-F-03-6386-JKS-DLB (ED Cal.), pp. 13-14. How then can the Court deny that the plaintiffs have shown a "realistic" threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members? Consider: Respondents allege, and the Government has conceded, that the Forest Service took wrongful actions (such as selling salvage timber) "thousands" of times in the two years prior to suit. Id., at 6; see also id., Exh. 2, Decl. of Gloria Manning, Associate Deputy Chief for National Forest System ¶ 6, p. 3 (identifying 3,377 "proposed decisions," "[a]s of July 1, 2005," that would be excluded from notice, comment, and appeal procedures). The Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, aesthetic, and environmental purposes. Complaint ¶¶ 8-12, App. 31-34. The Complaint further alleges, and no one denies, that these organizations (and their members), believing that actions such as salvage-timber sales harm those interests, regularly oppose salvage-timber sales (and similar actions) in proceedings before the agency. Ibid. And the Complaint alleges, and no *1157 one denies, that the organizations intend to continue to express their opposition to such actions in those proceedings in the future. Ibid. Consider further: The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that "at least one identified member ha[s] suffered ... harm." Ante, at 1151. Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests "hundreds of times," that he has often visited the Allegheny National Forest in the past, that he has "probably commented on a thousand" Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forest—one of the forests he has visited in the past. ¶¶ 6, 13, App. E to Pet. for Cert. 68a, 69a, 71a. The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a "realistic" threat that a project will impact land Bensman uses? To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it? And Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636, on which the majority so heavily relies, involved plaintiffs who challenged (true, a "massive") development, but only on a single previously determined site, about 80 acres in size, in a portion of the forest with a "limited ... number of visitors." Id., at 728, 92 S. Ct. 1361. The Court's unwillingness to infer harm to the Sierra Club's members there does not demand a similar unwillingness here, where the challenge is to procedures affecting "thousands" of sites, involving hundreds of times as much acreage, where the precise location of each may not yet be known. In Sierra Club, ibid., it may have been unreasonable simply to assume that members would suffer an "injury in fact." But here, given the very different factual circumstances, it is unreasonable to believe they would not. Whatever doubt may remain is settled by the affidavits the plaintiffs submitted after the Burnt Ridge dispute was settled (while the other claims in the Complaint remained alive). The majority says it will not consider those affidavits because they were submitted "[a]fter the District Court had entered judgment." Ante, at 1150, n. But the plaintiffs submitted the affidavits after judgment (in opposition to the Government's motion for a stay) because the Burnt Ridge dispute on which they had relied to show standing at the outset of suit had by that point been settled. No longer wishing to rely solely on evidence of their members' interest in that particular project, the plaintiff organizations submitted several other affidavits. Why describe this perfectly sensible response to the settlement of some of the Complaint's claims as a "retroactiv[e]" attempt to "me[e]t the challenge to their standing at the time of judgment"? Ibid. In fact, the Government did not challenge standing until that point, *1158 so of course respondents (who all agree had standing at the outset) did not respond with affidavits until later—when their standing was challenged. This can hardly be characterized as an attempt to "resurrect and alter the outcome" in the case. Ante, at 1153. Regardless, the Constitution does not bar the filing of further affidavits, nor does any statute. The Federal Rules of Civil Procedure contain no such bar. Indeed, those Rules provide a judge with liberal discretion to permit a plaintiff to amend a complaint—even after one dispute (of several) is settled. So why would they not permit the filing of affidavits—at least with the judge's permission? See Fed. Rule Civ. Proc. 15(d) ("The court may permit supplementation even though the original pleading is defective in stating a claim or defense"). The affidavits in question describe a number of then-pending Forest Service projects, all excluded from notice, comment, and appeal under the Forest Service regulations and all scheduled to take place on parcels that the plaintiff organizations' members use. Erik Ryberg, for example, a member of the Center for Biological Diversity, described in his affidavit a proposed logging project scheduled for the Payette National Forest—an area with which he is "personally familiar." ¶ 6, App. 90. A second affidavit filed by Jim Bensman described a salvage-timber sale scheduled for the Hoosier National Forest—an area Bensman had visited "multiple times" and to which he planned to return in the coming weeks—and one planned for the Daniel Boone National Forest—also used by Bensman—which would "impact [Heartwood's] members['] use of the areas." ¶¶ 8-9, id., at 85-86. The affidavits also describe, among other things, the frequency with which the organizations' members routinely file administrative appeals of salvage-timber sales and identify a number of proposed and pending projects that certain Sierra Club members wished to appeal. See Decl. of Rene Voss ¶ 3, id., at 94 (describing a proposed logging and prescribed burn planned for the Gallatin National Forest); Decl. of Craig Thomas ¶¶ 3, 13, id., at 95, 98 (describing Thomas' "use" and "enjoy[ment]" of the "Sierra Nevada national forests for recreational, aesthetic, scientific and professional pursuits," and attesting to "eighteen separate logging projects," all categorically excluded, proposed for one such forest tract). These allegations and affidavits more than adequately show a "realistic threat" of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not "be blind to what must be necessarily known to every intelligent person." In re Wo Lee, 26 F. 471, 475 (1886). Applying that standard, I would find standing here. * * * I recognize that the Government raises other claims and bases upon which to deny standing or to hold that the case is not ripe for adjudication. I believe that these arguments are without merit. But because the majority does not discuss them here, I shall not do so either. With respect, I dissent.

The Court holds that the Sierra Club and its members (along with other environmental organizations) do not suffer any "`concrete injury'" when the Forest Service sells timber for logging on "many thousands" of small (250-acre or less) woodland parcels without following legally required procedures—procedures which, if followed, could lead the Service to cancel or to modify the sales. Ante, at 1151. *1154 Nothing in the record or the law justifies this counterintuitive conclusion. I A The plaintiffs, respondents in this case, are five environmental organizations. The Earth Island Institute, a California organization, has over 15,000 members in the United States, over 3,000 of whom "use and enjoy the National Forests of California for recreational, educational, aesthetic, spiritual and other purposes." Corrected Complaint for Declaratory and Injunctive Relief in Case No. CIV-F-03-630 REC DLB (ED Cal.) ¶ 8, App. 31 (hereinafter Complaint). The Sequoia ForestKeeper, a small organization, has "100 plus" members who "use the forests of the Southern Sierra Nevada for activities such as hiking, bird and animal watching, aesthetic enjoyment, quiet contemplation, fishing and scientific study." at 32. Heartwood, Inc., located in Illinois and Indiana, is a coalition of environmental organizations with "members" who "continually use the National Forests for the purposes of ecological health, recreation, aesthetic enjoyment, and other purposes." at 33. The Center for Biological Diversity, located in Arizona, California, New Mexico, and Washington, has over 5,000 members who "use Forest Service lands," and who are "dedicated to the preservation, protection, and restoration of biological diversity, native species and ecosystems in the Western United States and elsewhere." ¶ 11. The Sierra Club has more than "700,000 members nationwide, including thousands of members in California" who "use and enjoy the Sequoia National Forest," for "outdoor recreation and scientific study of various kinds, including nature study, bird-watching, photography, fishing, canoeing, hunting, backpacking, camping, solitude, and a variety of other activities." at 34. These five organizations point to a federal law that says the Forest Service "shall establish a notice and comment process," along with a procedure for filing administrative "appeals," for "proposed actions. concerning projects and activities implementing land and resource management plans" 322, note following 16 U.S.C. 1612. They add that the Service has exempted from "notice, comment, and appeal" processes its decisions that allow, among other things, salvage-timber sales on burned forest lands of less than 250 acres in size. 36 CFR 215.4(a), 215.12(f) (2008); see also 68 Fed.Reg. 44607-44608 (2003) (describing projects exempted). And they claim that the Service's refusal to provide notice, comment, and appeal procedures violates the statute. Complaint ¶5-106, App. 61. B The majority says that the plaintiffs lack constitutional standing to raise this claim. It holds that the dispute between the five environmental groups and the Forest Service consists simply of an abstract challenge; it does not amount to the concrete "Cas[e]" or "Controvers[y]" that the Constitution grants federal courts the power to resolve. Art. III, 2, cl. 1. I cannot agree that this is so. To understand the constitutional issue that the majority decides, it may prove helpful to imagine that Congress enacted a statutory provision that expressly permitted environmental groups like the respondents here to bring cases just like the present one, provided (1) that the group has members who have used salvage-timber parcels in the past and are likely to do so in the future, and (2) that the group's members have opposed Forest Service *1155 timber sales in the past (using notice, comment, and appeal procedures to do so) and will likely use those procedures to oppose salvage-timber sales in the future. The majority cannot, and does not, claim that such a statute would be unconstitutional. See ; Sierra How then can it find the present case constitutionally unauthorized? I believe the majority answers this question as follows: It recognizes, as this Court has held, that a plaintiff has constitutional standing if the plaintiff demonstrates (1) an "`injury in fact,'" (2) that is "fairly traceable" to the defendant's "challenged action," and which (3) a "favorable [judicial] decision" will likely prevent or redress. Friends of Earth, The majority does not deny that the plaintiffs meet the latter two requirements. It focuses only upon the first, the presence of "actual," as opposed to "conjectural or hypothetical," injury. In doing so, it properly agrees that the "organizations" here can "assert the standing of their members." Ante, at 1149. It points out that injuries to the "members' recreational" or even "mere esthetic interests. will suffice." It does not claim that the procedural nature of the plaintiffs' claim makes the difference here, for it says only that "deprivation of a procedural right without some concrete interest" thereby affected, i.e., "a procedural right in vacuo" would prove "insufficient to create Article III standing." Ante, at 1151 (emphasis added); see also -518, The majority assumes, as do I, that these unlawful Forest Service procedures will lead to substantive actions, namely the sales of salvage timber on burned lands, that might not take place if the proper procedures were followed. But the majority then finds that the plaintiffs have not sufficiently demonstrated that these salvage-timber sales cause plaintiffs an actual injury, that is, harm to the recreational, aesthetic, or other environmental interests of organization members. Ante, at 1149-1150. To put the matter in terms of my hypothetical statute, the majority holds that the plaintiff organizations, while showing that they have members who have used salvage-timber sale parcels in the past (i.e., parcels that the Service does not subject to the notice, comment, and appeal procedures required by law), have failed to show that they have members likely to use such parcels in the future. II How can the majority credibly claim that salvage-timber sales, and similar projects, are unlikely to harm the asserted interests of the members of these environmental groups? The majority apparently does so in part by arguing that the Forest Service actions are not "imminent"—a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief. See Ohio Forestry Assn., I concede that the Court has sometimes used the word "imminent" in the context of constitutional standing. But it has done so primarily to emphasize that the harm in question—the harm that was not "imminent"—was merely "conjectural" or "hypothetical" or otherwise speculative. Where the Court has directly focused upon the matter, i.e., where, as here, a plaintiff has already been subject to the injury it wishes to challenge, the Court has *1156 asked whether there is a realistic likelihood that the challenged future conduct will, in fact, recur and harm the plaintiff. That is what the Court said in Los a case involving a plaintiff's attempt to enjoin police use of chokeholds. The Court wrote that the plaintiff, who had been subject to the unlawful chokehold in the past, would have had standing had he shown "a realistic threat" that reoccurrence of the challenged activity would cause him harm "in the reasonably near future." (emphasis added). Precedent nowhere suggests that the "realistic threat" standard contains identification requirements more stringent than the word "realistic" implies. See How could the Court impose a stricter criterion? Would courts deny standing to a holder of a future interest in property who complains that a life tenant's waste of the land will almost inevitably hurt the value of his interest—though he will have no personal interest for several years into the future? Would courts deny standing to a landowner who complains that a neighbor's upstream dam constitutes a nuisance—even if the harm to his downstream property (while bound to occur) will not occur for several years? Would courts deny standing to an injured person seeking a protection order from future realistic (but nongeographically specific) threats of further attacks? To the contrary, a threat of future harm may be realistic even where the plaintiff cannot specify precise times, dates, and GPS coordinates. Thus, we recently held that Massachusetts has standing to complain of a procedural failing, namely, 's failure properly to determine whether to restrict carbon dioxide emissions, even though that failing would create Massachusetts-based harm which (though likely to occur) might not occur for several decades. -523, The Forest Service admits that it intends to conduct thousands of further salvage-timber sales and other projects exempted under the challenged regulations "in the reasonably near future." See Defendants' Motion to Clarify and Amend Judgment in No. CIV-F-03-6386-JKS-DLB (ED Cal.), pp. 13-14. How then can the Court deny that the plaintiffs have shown a "realistic" threat that the Forest Service will continue to authorize (without the procedures claimed necessary) salvage-timber sales, and other Forest Service projects, that adversely affect the recreational, aesthetic, and environmental interests of the plaintiffs' members? Consider: Respondents allege, and the Government has conceded, that the Forest Service took wrongful actions (such as selling salvage timber) "thousands" of times in the two years prior to suit. ; see also Exh. 2, Decl. of Gloria Manning, Associate Deputy Chief for National Forest System ¶ 6, p. 3 (identifying 3,377 "proposed decisions," "[a]s of July 1, 2005," that would be excluded from notice, comment, and appeal procedures). The Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, aesthetic, and environmental purposes. Complaint ¶¶ 8-12, App. 31-34. The Complaint further alleges, and no one denies, that these organizations (and their members), believing that actions such as salvage-timber sales harm those interests, regularly oppose salvage-timber sales (and similar actions) in proceedings before the agency. And the Complaint alleges, and no *1157 one denies, that the organizations intend to continue to express their opposition to such actions in those proceedings in the future. Consider further: The affidavit of a member of Sequoia ForestKeeper, Ara Marderosian, attached to the Complaint, specifies that Marderosian had visited the Burnt Ridge Project site in the past and intended to return. The majority concedes that this is sufficient to show that Marderosian had standing to challenge the Burnt Ridge Project. The majority must therefore agree that "at least one identified member ha[s] suffered harm." Ante, at 1151. Why then does it find insufficient the affidavit, also attached to the Complaint, of Jim Bensman, a member of Heartwood, Inc.? That affidavit states, among other things, that Bensman has visited 70 National Forests, that he has visited some of those forests "hundreds of times," that he has often visited the Allegheny National Forest in the past, that he has "probably commented on a thousand" Forest Service projects including salvage-timber sale proposals, that he intends to continue to comment on similar Forest Service proposals, and that the Forest Service plans in the future to conduct salvage-timber sales on 20 parcels in the Allegheny National Forest—one of the forests he has visited in the past. ¶¶ 6, 13, App. E to Pet. for Cert. 68a, 69a, 71a. The Bensman affidavit does not say which particular sites will be affected by future Forest Service projects, but the Service itself has conceded that it will conduct thousands of exempted projects in the future. Why is more specificity needed to show a "realistic" threat that a project will impact land Bensman uses? To know, virtually for certain, that snow will fall in New England this winter is not to know the name of each particular town where it is bound to arrive. The law of standing does not require the latter kind of specificity. How could it? And Sierra on which the majority so heavily relies, involved plaintiffs who challenged (true, a "massive") development, but only on a single previously determined site, about 80 acres in size, in a portion of the forest with a "limited number of visitors." The Court's unwillingness to infer harm to the Sierra Club's members there does not demand a similar unwillingness here, where the challenge is to procedures affecting "thousands" of sites, involving hundreds of times as much acreage, where the precise location of each may not yet be known. In Sierra Club, ib it may have been unreasonable simply to assume that members would suffer an "injury in fact." But here, given the very different factual circumstances, it is unreasonable to believe they would not. Whatever doubt may remain is settled by the affidavits the plaintiffs submitted after the Burnt Ridge dispute was settled (while the other claims in the Complaint remained alive). The majority says it will not consider those affidavits because they were submitted "[a]fter the District Court had entered judgment." Ante, at 1150, n. But the plaintiffs submitted the affidavits after judgment (in opposition to the Government's motion for a stay) because the Burnt Ridge dispute on which they had relied to show standing at the outset of suit had by that point been settled. No longer wishing to rely solely on evidence of their members' interest in that particular project, the plaintiff organizations submitted several other affidavits. Why describe this perfectly sensible response to the settlement of some of the Complaint's claims as a "retroactiv[e]" attempt to "me[e]t the challenge to their standing at the time of judgment"? In fact, the Government did not challenge standing until that point, *1158 so of course respondents (who all agree had standing at the outset) did not respond with affidavits until later—when their standing was challenged. This can hardly be characterized as an attempt to "resurrect and alter the outcome" in the case. Ante, at 1153. Regardless, the Constitution does not bar the filing of further affidavits, nor does any statute. The Federal Rules of Civil Procedure contain no such bar. Indeed, those Rules provide a judge with liberal discretion to permit a plaintiff to amend a complaint—even after one dispute (of several) is settled. So why would they not permit the filing of affidavits—at least with the judge's permission? See Fed. Rule Civ. Proc. 15(d) ("The court may permit supplementation even though the original pleading is defective in stating a claim or defense"). The affidavits in question describe a number of then-pending Forest Service projects, all excluded from notice, comment, and appeal under the Forest Service regulations and all scheduled to take place on parcels that the plaintiff organizations' members use. Erik Ryberg, for example, a member of the Center for Biological Diversity, described in his affidavit a proposed logging project scheduled for the Payette National Forest—an area with which he is "personally familiar." ¶ 6, App. 90. A second affidavit filed by Jim Bensman described a salvage-timber sale scheduled for the Hoosier National Forest—an area Bensman had visited "multiple times" and to which he planned to return in the coming weeks—and one planned for the Daniel Boone National Forest—also used by Bensman—which would "impact [Heartwood's] members['] use of the areas." ¶¶ 8-9, The affidavits also describe, among other things, the frequency with which the organizations' members routinely file administrative appeals of salvage-timber sales and identify a number of proposed and pending projects that certain Sierra Club members wished to appeal. See Decl. of Rene Voss ¶ 3, ; Decl. of Craig Thomas ¶¶ 3, 13, These allegations and affidavits more than adequately show a "realistic threat" of injury to plaintiffs brought about by reoccurrence of the challenged conduct—conduct that the Forest Service thinks lawful and admits will reoccur. Many years ago the Ninth Circuit warned that a court should not "be blind to what must be necessarily known to every intelligent person." In re Wo Lee, Applying that standard, I would find standing here. * * * I recognize that the Government raises other claims and bases upon which to deny standing or to hold that the case is not ripe for adjudication. I believe that these arguments are without merit. But because the majority does not discuss them here, I shall not do so either. With respect, I dissent.

Justice Ginsburg

majority

Microsoft Corp. v. Baker

2017-06-12

https://www.courtlistener.com/opinion/4403813/microsoft-corp-v-baker/

https://www.courtlistener.com/api/rest/v3/clusters/4403813/

2016-053

This case concerns options open to plaintiffs, when denied class-action certification by a district court, to gain appellate review of the district court’s order. Orders granting or denying class certification, this Court has held, are “inherently interlocutory,” Coopers & Lybrand v. Livesay, 437 U.S. 463, 470 (1978), hence not immediately reviewable under 28 U.S. C. §1291, which provides for appeals from “final decisions.” Pursuant to Federal Rule of Civil Procedure 23(f ), promulgated in 1998, however, orders denying or granting class certification may be appealed immediately if the court of appeals so permits. Absent such permission, plaintiffs may pursue their indi- vidual claims on the merits to final judgment, at which point the denial of class-action certification becomes ripe for review. The plaintiffs in the instant case, respondents here, were denied Rule 23(f ) permission to appeal the District Court’s refusal to grant class certification. Instead of pursuing their individual claims to final judgment on the merits, respondents stipulated to a voluntary dismissal of 2 MICROSOFT CORP. v. BAKER Opinion of the Court their claims “with prejudice,” but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial. We hold that the voluntary dismissal essayed by re- spondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piece- meal appeals, and subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders. I A Under §1291 of the Judicial Code, federal courts of appeals are empowered to review only “final decisions of the district courts.” 28 U.S. C. §1291.1 Two guides, our decision in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), and Federal Rule of Civil Procedure 23(f ), control our application of that finality rule here. 1 In Coopers & Lybrand, this Court considered whether a plaintiff in a putative class action may, under certain circumstances, appeal as of right a district court order striking class allegations or denying a motion for class certification. We held unanimously that the so-called “death-knell” doctrine did not warrant mandatory appel- late jurisdiction of such “inherently interlocutory” orders. 437 U.S., at 470, 477. Courts of Appeals employing the doctrine “regarded [their] jurisdiction as depending on whether [rejection of class-action status] had sounded the ‘death knell’ of the action.” Id., at 466. These courts asked whether the refusal to certify a class would end a lawsuit for all practical purposes because the value of the —————— 1 Section 1292, which authorizes review of certain interlocutory deci- sions, does not include among those decisions class-action certifications. See 28 U.S. C. §1292. Cite as: 582 U. S. ____ (2017) 3 Opinion of the Court named plaintiff ’s individual claims made it “economically imprudent to pursue his lawsuit to a final judgment and [only] then seek appellate review of [the] adverse class determination.” Id., at 469–470. If, in the court of ap- peals’ view, the order would terminate the litigation, the court deemed the order an appealable final decision under §1291. Id., at 471. If, instead, the court determined that the plaintiff had “adequate incentive to continue [litigat- ing], the order [was] considered interlocutory.” Ibid. Consequently, immediate appeal would be denied. The death-knell theory likely “enhance[d] the quality of justice afforded a few litigants,” we recognized. Id., at 473. But the theory did so, we observed, at a heavy cost to §1291’s finality requirement, and therefore to “the judicial system’s overall capacity to administer justice.” Id., at 473; see id., at 471 (Section 1291 “evinces a legislative judgment that ‘restricting appellate review to final deci- sions prevents the debilitating effect on judicial admin- istration caused by piecemeal appeal disposition.’ ” (quot- ing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974) (alterations and internal quotation marks omit- ted))). First, the potential for multiple interlocutory ap- peals inhered in the doctrine: When a ruling denying class certification on one ground was reversed on appeal, a death-knell plaintiff might again claim “entitle[ment] to an appeal as a matter of right” if, on remand, the district court denied class certification on a different ground. Coopers & Lybrand, 437 U.S., at 474. Second, the doctrine forced appellate courts indiscrimi- nately into the trial process, thereby defeating a “vital purpose of the final-judgment rule—that of maintaining the appropriate relationship between the respective courts.” Id., at 476 (internal quotation marks omitted); see id., at 474. The Interlocutory Appeals Act of 1958, 28 U.S. C. §1292(b), we explained, had created a two-tiered “screening procedure” to preserve this relationship and to 4 MICROSOFT CORP. v. BAKER Opinion of the Court restrict the availability of interlocutory review to “appro- priate cases.” 437 U.S., at 474. For a party to obtain review under §1292(b), the district court must certify that the interlocutory order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The court of appeals may then, “in its discre- tion, permit an appeal to be taken from such order.” The death-knell doctrine, we stressed, “circumvent[ed] [§1292(b)’s] restrictions.” Id., at 475. Finally, we observed, the doctrine was one sided: It “operate[d] only in favor of plaintiffs,” even though the class-certification question is often “of critical importance to defendants as well.” Id., at 476. Just as a denial of class certification may sound the death knell for plaintiffs, “[c]ertification of a large class may so increase the defend- ant’s potential damages liability and litigation costs that he may find it economically prudent to settle and to aban- don a meritorious defense.” Ibid.2 In view of these concerns, the Court reached this conclu- sion in Coopers & Lybrand: “The fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering [the order] a ‘final decision’ within the meaning of §1291.” Id., at 477.3 —————— 2 Thisscenario has been called a “reverse death knell,” Sullivan & Trueblood, Rule 23(f ): A Note on Law and Discretion in the Courts of Appeals, 246 F. R. D. 277, 280 (2008), or “inverse death knell,” 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1802, p. 299 (3d ed. 2005), for it too ends the litigation as a practical matter. 3 Coopers & Lybrand also rejected the collateral-order doctrine as a basis for invoking §1291 to appeal an order denying class certification. The collateral-order doctrine applies only to a “small class” of decisions that are conclusive, that resolve important issues “completely separate from the merits,” and that are “effectively unreviewable on appeal from a final judgment.” 437 U.S., at 468. An order concerning class certifi- Cite as: 582 U. S. ____ (2017) 5 Opinion of the Court 2 After Coopers & Lybrand, a party seeking immediate review of an adverse class-certification order had no easy recourse. The Federal Rules of Civil Procedure did not then “contain any unique provisions governing appeals” in class actions, id., at 470, so parties had to survive §1292(b)’s two-level inspection, see id., at 474–475, and n. 27; supra, at 3–4, or satisfy the extraordinary- circumstances test applicable to writs of mandamus, see Will v. United States, 389 U.S. 90, 108 (1967) (Black, J., concurring) (“[In] extraordinary circumstances, mandamus may be used to review an interlocutory order which is by no means ‘final’ and thus appealable under federal stat- utes.”); cf. Coopers & Lybrand, 437 U.S., at 466, n. 6. Another avenue opened in 1998 when this Court ap- proved Federal Rule of Civil Procedure 23(f ). Seen as a response to Coopers & Lybrand, see, e.g., Blair v. Equifax Check Services, Inc., 181 F.3d 832, 834 (CA7 1999); Soli- mine & Hines, Deciding To Decide: Class Action Certifica- tion and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f ), 41 Wm. & Mary L. Rev. 1531, 1568 (2000), Rule 23(f ) authorizes “permissive interlocutory appeal” from adverse class-certification orders in the discretion of the court of appeals, Advisory Committee’s 1998 Note on subd. (f ) of Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 815 (hereinafter Committee Note on Rule 23(f )). The Rule was adopted pursuant to §1292(e), see Committee Note on Rule 23(f ), which em- powers this Court, in accordance with the Rules Enabling Act, 28 U.S. C. §2072, to promulgate rules “to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for [in §1292].” §1292(e).4 Rule 23(f ) reads: —————— cation, we explained, fails each of these criteria. See id., at 469. 4 Congress amended the Rules Enabling Act, 28 U.S. C. §2071 et seq., 6 MICROSOFT CORP. v. BAKER Opinion of the Court “A court of appeals may permit an appeal from an or- der granting or denying class-action certification . . . if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.”5 Courts of appeals wield “unfettered discretion” under Rule 23(f ), akin to the discretion afforded circuit courts under §1292(b). Committee Note on Rule 23(f ). But Rule 23(f ) otherwise “departs from the §1292(b) model,” for it re- quires neither district court certification nor adherence to §1292(b)’s other “limiting requirements.” Committee Note on Rule 23(f ); see supra, at 3–4. This resolution was the product of careful calibration. By “[r]emoving the power of the district court to defeat any opportunity to appeal,” the drafters of Rule 23(f ) sought to provide “significantly greater protection against improvi- dent certification decisions than §1292(b)” alone offered. Judicial Conference of the United States, Advisory Com- mittee on Civil Rules, Minutes of November 9–10, 1995. But the drafters declined to go further and provide for appeal as a matter of right. “[A] right to appeal would —————— in 1990 to authorize this Court to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under section 1291.” §2072(c). Congress enacted §1292(e) two years later, and that same year the Advisory Committee on the Federal Rules of Civil Procedure began to review proposals for what would become Rule 23(f ). See Solimine & Hines, Deciding To Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f ), 41 Wm. & Mary L. Rev. 1531, 1563–1564, 1566, n. 189 (2000). 5 Rule 23(f ) has changed little since its adoption in 1998. See Ad- visory Committee’s 2007 and 2009 Notes on subd. (f ) of Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 820 (deleting a redundancy and increas- ing the time to petition for permission to appeal from ten to 14 days, respectively). Cite as: 582 U. S. ____ (2017) 7 Opinion of the Court lead to abuse” on the part of plaintiffs and defendants alike, the drafters apprehended, “increas[ing] delay and expense” over “routine class certification decisions” unwor- thy of immediate appeal. Ibid. (internal quotation marks omitted). See also Brief for Civil Procedure Scholars as Amici Curiae 6–7, 11–14 (“Rule 23(f ) was crafted to bal- ance the benefits of immediate review against the costs of interlocutory appeals.” (capitalization omitted)). Rule 23(f ) therefore commits the decision whether to permit interlocutory appeal from an adverse certification decision to “the sole discretion of the court of appeals.” Committee Note on Rule 23(f ); see Federal Judicial Center, T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Re- port to the Advisory Committee on Civil Rules 86 (1996) (hereinafter Federal Judicial Center Study) (“The discre- tionary nature of the proposed rule . . . is designed to be a guard against abuse of the appellate process.”).6 The Rules Committee offered some guidance to courts of appeals considering whether to authorize appeal under Rule 23(f ). “Permission is most likely to be granted,” the Committee Note states, “when the certification decision turns on a novel or unsettled question of law,” or when “the decision on certification is likely dispositive of the litigation,” as in a death-knell or reverse death-knell situation. Committee Note on Rule 23(f ); see supra, at 4, —————— 6 Legislation striking this balance was also introduced in Congress. See H. R. 660, 105th Cong., 1st Sess. (1997). The bill, which would have amended §1292(b) to provide for interlocutory appeal of adverse class determinations, likewise committed the decision whether an immediate appeal would lie exclusively to the courts of appeals: “The court of appeals may, in its discretion, permit the appeal to be taken from such determination.” Ibid. Upon learning that “proposed Rule 23(f ) [was] well advanced,” the bill’s sponsor, Representative Charles Canady, joined forces with the Rules Committee. See Judicial Confer- ence of the United States, Advisory Committee on Civil Rules, Minutes of May 1–2, 1997. 8 MICROSOFT CORP. v. BAKER Opinion of the Court and n. 2. Even so, the Rule allows courts of appeals to grant or deny review “on the basis of any consideration.” Committee Note on Rule 23(f ) (emphasis added). B With this background in mind, we turn to the putative class action underlying our jurisdictional inquiry. The lawsuit is not the first of its kind. A few years after peti- tioner Microsoft Corporation released its popular video- game console, the Xbox 360, a group of Xbox owners brought a putative class action against Microsoft based on an alleged design defect in the device. See In re Microsoft Xbox 360 Scratched Disc Litigation, 2009 WL 10219350, *1 (WD Wash., Oct. 5, 2009). The named plaintiffs, ad- vised by some of the same counsel representing respond- ents in this case, asserted that the Xbox scratched (and thus destroyed) game discs during normal game-playing conditions. See ibid. The District Court denied class certification, holding that individual issues of damages and causation predominated over common issues. See id., at *6–*7. The plaintiffs petitioned the Ninth Circuit under Rule 23(f ) for leave to appeal the class-certification denial, but the Ninth Circuit denied the request. See 851 F. Supp. 2d 1274, 1276 (WD Wash. 2012). Thereafter, the Scratched Disc plaintiffs settled their claims individually. 851 F. Supp. 2d, at 1276. Two years later, in 2011, respondents filed this lawsuit in the same Federal District Court. They proposed a nationwide class of Xbox owners based on the same design defect alleged in Scratched Disc Litigation. See 851 F. Supp. 2d, at 1275–1276. The class-certification analysis in the earlier case did not control, respondents urged, because an intervening Ninth Circuit decision constituted a change in law sufficient to overcome the deference ordi- narily due, as a matter of comity, the previous certification denial. Id., at 1277–1278. The District Court disagreed. Cite as: 582 U. S. ____ (2017) 9 Opinion of the Court Concluding that the relevant Circuit decision had not undermined Scratched Disc Litigation’s causation analy- sis, the court determined that comity required adherence to the earlier certification denial and therefore struck respondents’ class allegations. 851 F. Supp. 2d, at 1280– 1281. Invoking Rule 23(f ), respondents petitioned the Ninth Circuit for permission to appeal that ruling.7 Interlocu- tory review was appropriate in this case, they argued, be- cause the District Court’s order striking the class allega- tions created a “death-knell situation”: The “small size of [their] claims ma[de] it economically irrational to bear the cost of litigating th[e] case to final judgment,” they asserted, so the order would “effectively kil[l] the case.” Pet. for Permission To Appeal Under Rule 23(f ) in No. 12–80085 (CA9), App. 118. The Ninth Circuit denied the petition. Order in No. 12–80085 (CA9, June 12, 2012), App. 121. Respondents then had several options. They could have settled their individual claims like their Scratched Disc predecessors or petitioned the District Court, pursuant to §1292(b), to certify the interlocutory order for appeal, see supra, at 3–4. They could also have proceeded to litigate their case, mindful that the District Court could later reverse course and certify the proposed class. See Fed. Rule Civ. Proc. 23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended before final judgment.”); Coopers & Lybrand, 437 U.S., at 469 (a certification order “is subject to revision in the District Court”). Or, in the event the District Court did not change —————— 7 An order striking class allegations is “functional[ly] equivalent” to an order denying class certification and therefore appealable under Rule 23(f ). Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 110–111, n. 2 (CA4 2013) (quoting In re Bemis Co., 279 F.3d 419, 421 (CA7 2002)). See also United Airlines, Inc. v. McDonald, 432 U.S. 385, 388, and n. 4 (1977) (equating order striking class allegations with “a denial of class certification”). 10 MICROSOFT CORP. v. BAKER Opinion of the Court course, respondents could have litigated the case to final judgment and then appealed. Id., at 469 (“an order deny- ing class certification is subject to effective review after final judgment at the behest of the named plaintiff ”). Instead of taking one of those routes, respondents moved to dismiss their case with prejudice. “After the [c]ourt has entered a final order and judgment,” respond- ents explained, they would “appeal the . . . order striking [their] class allegations.” Motion To Dismiss in No. 11–cv– 00722 (WD Wash., Sept. 25, 2012), App. 122–123. In respondents’ view, the voluntary dismissal enabled them “to pursue their individual claims or to pursue relief solely on behalf of the class, should the certification decision be reversed.” Brief for Respondents 15. Microsoft stipulated to the dismissal, but maintained that respondents would have “no right to appeal” the order striking the class allegations after thus dismissing their claims. App. to Pet. for Cert. 35a–36a. The District Court granted the stipu- lated motion to dismiss, id., at 39a, and respondents ap- pealed. They challenged only the District Court’s inter- locutory order striking their class allegations, not the dismissal order which they invited. See Brief for Plaintiffs- Appellants in No. 12–35946 (CA9). The Ninth Circuit held it had jurisdiction to entertain the appeal under §1291. 797 F.3d 607, 612 (2015). The Court of Appeals rejected Microsoft’s argument that re- spondents’ voluntary dismissal, explicitly engineered to appeal the District Court’s interlocutory order striking the class allegations, impermissibly circumvented Rule 23(f ). Ibid., n. 3. Because the stipulated dismissal “did not involve a settlement,” the court reasoned, it was “ ‘a suffi- ciently adverse—and thus appealable—final decision’ ” under §1291. Id., at 612 (quoting Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1065 (CA9 2014)); see id., at 1065 (relying on 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §1802, pp. 297–298 (3d ed. Cite as: 582 U. S. ____ (2017) 11 Opinion of the Court 2005), for the proposition “that finality for appeal purposes can be achieved in this manner”). Satisfied of its jurisdiction, the Ninth Circuit held that the District Court had abused its discretion in striking respondents’ class allegations. 797 F.3d, at 615. The Court of Appeals “express[ed] no opinion on whether” respondents “should prevail on a motion for class certifica- tion,” ibid., concluding only that the District Court had misread recent Circuit precedent, see id., at 613–615, and therefore misapplied the comity doctrine, id., at 615. Whether a class should be certified, the court said, was a question for remand, “better addressed if and when [re- spondents] move[d] for class certification.” Ibid. We granted certiorari to resolve a Circuit conflict over this question: Do federal courts of appeals have jurisdic- tion under §1291 and Article III of the Constitution to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice?8 577 U. S. ___ (2016). Because we hold that §1291 does not countenance jurisdiction by these means, we do not reach the constitutional question, and therefore do not address the arguments and analysis discussed in the opinion concurring in the judgment. II “From the very foundation of our judicial system,” the general rule has been that “the whole case and every —————— 8 Compare Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1065 (CA9 2014) (assuming jurisdiction under these circumstances); Gary Plastic Packaging Corp. v. Merrill Lynch, 903 F.2d 176, 179 (CA2 1990) (assuming jurisdiction after dismissal for failure to prosecute), with Camesi v. University of Pittsburgh Medical Center, 729 F.3d 239, 245–247 (CA3 2013) (no jurisdiction under §1291 or Article III in this situation); Rhodes v. E. I. du Pont de Nemours & Co., 636 F.3d 88, 100 (CA4 2011) (no jurisdiction under Article III). 12 MICROSOFT CORP. v. BAKER Opinion of the Court matter in controversy in it [must be] decided in a single appeal.” McLish v. Roff, 141 U.S. 661, 665–666 (1891). This final-judgment rule, now codified in §1291, preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). Construing §1291 in line with these reasons for the rule, we have recognized that “finality is to be given a practical rather than a technical construction.” Eisen, 417 U.S., at 171 (internal quotation marks omitted). Repeatedly we have resisted efforts to stretch §1291 to permit appeals of right that would erode the finality principle and disserve its objectives. See, e.g., Mohawk Industries, Inc. v. Car- penter, 558 U.S. 100, 112 (2009); Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 878–879, 884 (1994); Cobbledick v. United States, 309 U.S. 323, 324–325, 330 (1940) (construing §1291’s predecessor statute). Attempts to secure appeal as of right from adverse class-certification orders fit that bill. See supra, at 2–4. Because respond- ents’ dismissal device subverts the final-judgment rule and the process Congress has established for refining that rule and for determining when nonfinal orders may be immediately appealed, see §§2072(c) and 1292(e), the tactic does not give rise to a “final decisio[n]” under §1291. A Respondents’ voluntary-dismissal tactic, even more than the death-knell theory, invites protracted litigation and piecemeal appeals. Under the death-knell doctrine, a court of appeals could decline to hear an appeal if it de- termined that the plaintiff “ha[d] adequate incentive to continue” despite the denial of class certification. Coopers & Lybrand, 437 U.S., at 471. Appellate courts lack even that authority under respondents’ theory. Instead, the Cite as: 582 U. S. ____ (2017) 13 Opinion of the Court decision whether an immediate appeal will lie resides exclusively with the plaintiff; she need only dismiss her claims with prejudice, whereupon she may appeal the district court’s order denying class certification. And, as under the death-knell doctrine, she may exercise that option more than once, stopping and starting the district court proceedings with repeated interlocutory appeals. See id., at 474 (death-knell doctrine offered “no assurance that the trial process [would] not again be disrupted by interlocutory review”). Consider this case. The Ninth Circuit reviewed and rejected only the District Court’s application of comity as a basis for striking respondents’ class allegations. 797 F.3d, at 615. The appeals court declined to reach Microsoft’s other arguments against class certification. See ibid. It remained open to the District Court, in the Court of Appeals’ view, to deny class certification on a differ- ent ground, and respondents would be free, under their theory, to force appellate review of any new order denying certification by again dismissing their claims. In design- ing Rule 23(f )’s provision for discretionary review, the Rules Committee sought to prevent such disruption and delay. See supra, at 6–8.9 Respondents nevertheless maintain that their position promotes efficiency, observing that after dismissal with prejudice the case is over if the plaintiff loses on appeal. Brief for Respondents 38–39. Their way, they say, means prompt resolution of many lawsuits and infrequent use of the voluntary-dismissal tactic, for “most appeals lose” and —————— 9 Rule 23(f ) avoids delay not only by limiting class-certification ap- peals to those permitted by the federal courts of appeals, but also by specifying that “[a]n appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” See Blair v. Equifax Check Services, Inc., 181 F.3d 832, 835 (CA7 1999) (“Rule 23(f ) is drafted to avoid delay.”). Respondents’ dismissal tactic, by contrast, halts district court proceedings whenever invoked. 14 MICROSOFT CORP. v. BAKER Opinion of the Court few plaintiffs will “take th[e] risk” of losing their claims for good. Id., at 35–36. Respondents overlook the prospect that plaintiffs with weak merits claims may readily as- sume that risk, mindful that class certification often leads to a hefty settlement. See Coopers & Lybrand, 437 U.S., at 476 (defendant facing the specter of classwide liability may “abandon a meritorious defense”). Indeed, the same argument—that the case was over if the plaintiff lost on appeal—was evident in the death-knell context, yet this Court determined that the potential for piecemeal litiga- tion was “apparent and serious.” Id., at 474.10 And that potential is greater still under respondents’ theory, where plaintiffs alone determine whether and when to appeal an adverse certification ruling. B Another vice respondents’ theory shares with the death- knell doctrine, both allow indiscriminate appellate review of interlocutory orders. Ibid. Beyond disturbing the “ap- propriate relationship between the respective courts,” id., at 476 (internal quotation marks omitted), respondents’ dismissal tactic undercuts Rule 23(f )’s discretionary re- gime. This consideration is “[o]f prime significance to the jurisdictional issue before us.” Swint v. Chambers County Comm’n, 514 U.S. 35, 46 (1995) (pendent appellate juris- diction in collateral-order context would undermine §1292(b)); see supra, at 3–4 (death-knell doctrine imper- missibly circumvented §1292(b)). —————— 10 The very premise of the death-knell doctrine was that plaintiffs “would not pursue their claims individually.” Coopers & Lybrand, 437 U.S., at 466. Having pressed such an argument for the benefit of immediate review, a death-knell plaintiff who lost on appeal would encounter the general proposition, long laid down, that “where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” Davis v. Wakelee, 156 U.S. 680, 689 (1895). Cite as: 582 U. S. ____ (2017) 15 Opinion of the Court In the Rules Enabling Act, as earlier recounted, Con- gress authorized this Court to determine when a decision is final for purposes of §1291, and to provide for appellate review of interlocutory orders not covered by statute. See supra, at 5–6, and n. 4. These changes are to come from rulemaking, however, not judicial decisions in particular controversies or inventive litigation ploys. See Swint, 514 U.S., at 48. In this case, the rulemaking process has dealt with the matter, yielding a “measured, practical solu- tio[n]” to the questions whether and when adverse certifi- cation orders may be immediately appealed. Mohawk Industries, 558 U.S., at 114. Over years the Advisory Committee on the Federal Rules of Civil Procedure stud- ied the data on class-certification rulings and appeals, weighed various proposals, received public comment, and refined the draft rule and Committee Note. See Solimine & Hines, 41 Wm. & Mary L. Rev., at 1564–1566, and nn. 178–189; Federal Judicial Center Study 80–87. Rule 23(f ) reflects the rulemakers’ informed assessment, permitting, as explained supra, at 5–7, interlocutory appeals of ad- verse certification orders, whether sought by plaintiffs or defendants, solely in the discretion of the courts of ap- peals. That assessment “warrants the Judiciary’s full respect.” Swint, 514 U.S., at 48; see Mohawk Industries, 558 U.S., at 118–119 (THOMAS, J., concurring in part and concurring in judgment). Here, however, the Ninth Circuit, after denying re- spondents permission to appeal under Rule 23(f ), never- theless assumed jurisdiction of their appeal challenging only the District Court’s order striking the class allega- tions. See supra, at 9–10. According to respondents, even plaintiffs who altogether bypass Rule 23(f ) may force an appeal by dismissing their claims with prejudice. See Tr. of Oral Arg. 34. Rule 23(f ), respondents say, is irrelevant, for it “address[es] interlocutory orders,” whereas this case involves “an actual final judgment.” Brief for Respondents 16 MICROSOFT CORP. v. BAKER Opinion of the Court 26, 28. We are not persuaded. If respondents’ voluntary- dismissal tactic could yield an appeal of right, Rule 23(f )’s careful calibration—as well as Congress’ designation of rulemaking “as the preferred means for determining whether and when prejudgment orders should be immedi- ately appealable,” Mohawk Industries, 558 U.S., at 113 (majority opinion)—“would be severely undermined,” Swint, 514 U.S., at 47. Respondents, after all, “[sought] review of only the [inherently interlocutory] orde[r]” strik- ing their class allegations; they “d[id] not complain of the ‘final’ orde[r] that dismissed their cas[e].” Camesi v. Uni- versity of Pittsburgh Medical Center, 729 F.3d 239, 244 (CA3 2013). Plaintiffs in putative class actions cannot transform a tentative interlocutory order, see supra, at 9, into a final judgment within the meaning of §1291 simply by dismiss- ing their claims with prejudice—subject, no less, to the right to “revive” those claims if the denial of class certifi- cation is reversed on appeal, see Brief for Respondents 45; Tr. of Oral Arg. 31 (assertion by respondents’ counsel that, if the appeal succeeds, “everything would spring back to life” on remand). Were respondents’ reasoning embraced by this Court, “Congress[’] final decision rule would end up a pretty puny one.” Digital Equipment Corp., 511 U.S., at 872. Contrary to respondents’ argument, §1291’s firm final-judgment rule is not satisfied whenever a litigant persuades a district court to issue an order purporting to end the litigation. Finality, we have long cautioned, “is not a technical concept of temporal or physical termina- tion.” Cobbledick, 309 U.S., at 326. It is one “means [geared to] achieving a healthy legal system,” ibid., and its contours are determined accordingly, see supra, at 12.11 —————— 11 Respondents also invoke our decision in United States v. Procter & Gamble Co., 356 U.S. 677 (1958), but that case—a civil antitrust Cite as: 582 U. S. ____ (2017) 17 Opinion of the Court C The one-sidedness of respondents’ voluntary-dismissal device “reinforce[s] our conclusion that [it] does not sup- port appellate jurisdiction of prejudgment orders denying class certification.” Coopers & Lybrand, 437 U.S., at 476; see supra, at 4. Respondents’ theory permits plaintiffs only, never defendants, to force an immediate appeal of an adverse certification ruling. Yet the “class issue” may be just as important to defendants, Coopers & Lybrand, 437 U.S., at 476, for “[a]n order granting certification . . . may force a defendant to settle rather than . . . run the risk of potentially ruinous liability,” Committee Note on Rule 23(f ); see supra, at 4, and n. 2 (defendants may face a “reverse death knell”). Accordingly, we recognized in Coopers & Lybrand that “[w]hatever similarities or differ- ences there are between plaintiffs and defendants in this context involve questions of policy for Congress.” 437 U.S., at 476. Congress chose the rulemaking process to settle the matter, and the rulemakers did so by adopting Rule 23(f )’s evenhanded prescription. It is not the prerog- ative of litigants or federal courts to disturb that settle- ment. See supra, at 14–15. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. —————— enforcement action—involved neither class-action certification nor the sort of dismissal tactic at issue here. See id., at 681 (the Government “did not consent to a judgment against [it]” (internal quotation marks omitted)). Cite as: 582 U. S. ____ (2017) 1 THOMAS THOMAS , J., concurring , J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 15–457 _________________ MICROSOFT CORPORATION, PETITIONER v. SETH BAKER, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 12, 2017] JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE ALITO join, concurring in the judgment.

This case concerns options open to plaintiffs, when denied class-action certification by a district court, to gain appellate review of the district court’s order. Orders granting or denying class certification, this Court has held, are “inherently interlocutory,” Coopers & v. Livesay, hence not immediately reviewable under 28 U.S. C. which provides for appeals from “final decisions.” Pursuant to Federal Rule of Civil Procedure 23(f ), promulgated in 1998, however, orders denying or granting class certification may be appealed immediately if the court of appeals so permits. Absent such permission, plaintiffs may pursue their indi- vidual claims on the merits to final judgment, at which point the denial of class-action certification becomes ripe for review. The plaintiffs in the instant case, respondents here, were denied Rule 23(f ) permission to appeal the District Court’s refusal to grant class certification. Instead of pursuing their individual claims to final judgment on the merits, respondents stipulated to a voluntary dismissal of 2 MICROSOFT CORP. v. BAKER Opinion of the Court their claims “with prejudice,” but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial. We hold that the voluntary dismissal essayed by re- spondents does not qualify as a “final decision” within the compass of The tactic would undermine firm finality principle, designed to guard against piece- meal appeals, and subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders. I A Under of the Judicial Code, federal courts of appeals are empowered to review only “final decisions of the district courts.” 28 U.S. C. 1 Two guides, our decision in Coopers & and Federal Rule of Civil Procedure 23(f ), control our application of that finality rule here. 1 In Coopers & this Court considered whether a plaintiff in a putative class action may, under certain circumstances, appeal as of right a district court order striking class allegations or denying a motion for class certification. We held unanimously that the so-called “death-knell” doctrine did not warrant mandatory appel- late jurisdiction of such “inherently interlocutory” orders. 437 U.S., at 477. Courts of Appeals employing the doctrine “regarded [their] jurisdiction as depending on whether [rejection of class-action status] had sounded the ‘death knell’ of the action.” These courts asked whether the refusal to certify a class would end a lawsuit for all practical purposes because the value of the —————— 1 Section 1292, which authorizes review of certain interlocutory deci- sions, does not include among those decisions class-action certifications. See 28 U.S. C. Cite as: 582 U. S. (2017) 3 Opinion of the Court named plaintiff ’s individual claims made it “economically imprudent to pursue his lawsuit to a final judgment and [only] then seek appellate review of [the] adverse class determination.” –. If, in the court of ap- peals’ view, the order would terminate the litigation, the court deemed the order an appealable final decision under If, instead, the court determined that the plaintiff had “adequate incentive to continue [litigat- ing], the order [was] considered interlocutory.” Consequently, immediate appeal would be denied. The death-knell theory likely “enhance[d] the quality of justice afforded a few litigants,” we recognized. at 473. But the theory did so, we observed, at a heavy cost to finality requirement, and therefore to “the judicial system’s overall capacity to administer justice.” at 473; see (Section 1291 “evinces a legislative judgment that ‘restricting appellate review to final deci- sions prevents the debilitating effect on judicial admin- istration caused by piecemeal appeal disposition.’ ” (quot- ing (1974) (alterations and internal quotation marks omit- ted))). First, the potential for multiple interlocutory ap- peals inhered in the doctrine: When a ruling denying class certification on one ground was reversed on appeal, a death-knell plaintiff might again claim “entitle[ment] to an appeal as a matter of right” if, on remand, the district court denied class certification on a different ground. Coopers & Second, the doctrine forced appellate courts indiscrimi- nately into the trial process, thereby defeating a “vital purpose of the final-judgment rule—that of maintaining the appropriate relationship between the respective courts.” ; see The Interlocutory Appeals Act of 1958, 28 U.S. C. we had created a two-tiered “screening procedure” to preserve this relationship and to 4 MICROSOFT CORP. v. BAKER Opinion of the Court restrict the availability of interlocutory review to “appro- priate cases.” For a party to obtain review under the district court must certify that the interlocutory order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The court of appeals may then, “in its discre- tion, permit an appeal to be taken from such order.” The death-knell doctrine, we stressed, “circumvent[ed] restrictions.” Finally, we observed, the doctrine was one sided: It “operate[d] only in favor of plaintiffs,” even though the class-certification question is often “of critical importance to defendants as well.” Just as a denial of class certification may sound the death knell for plaintiffs, “[c]ertification of a large class may so increase the defend- ant’s potential damages liability and litigation costs that he may find it economically prudent to settle and to aban- don a meritorious defense.” 2 In view of these concerns, the Court reached this conclu- sion in Coopers & : “The fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering [the order] a ‘final decision’ within the meaning of ” 77.3 —————— 2 Thisscenario has been called a “reverse death knell,” Sullivan & Trueblood, Rule 23(f ): A Note on Law and Discretion in the Courts of Appeals, 2 F. R. D. 277, 280 (2008), or “inverse death knell,” 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure p. 299 (3d ed. 2005), for it too ends the litigation as a practical matter. 3 Coopers & also rejected the collateral-order doctrine as a basis for invoking to appeal an order denying class certification. The collateral-order doctrine applies only to a “small class” of decisions that are conclusive, that resolve important issues “completely separate from the merits,” and that are “effectively unreviewable on appeal from a final judgment.” An order concerning class certifi- Cite as: 582 U. S. (2017) 5 Opinion of the Court 2 After Coopers & a party seeking immediate review of an adverse class-certification order had no easy recourse. The Federal Rules of Civil Procedure did not then “contain any unique provisions governing appeals” in class actions, at so parties had to survive two-level inspection, see –475, and n. 27; at 3–4, or satisfy the extraordinary- circumstances test applicable to writs of mandamus, see (Black, J., concurring) (“[In] extraordinary circumstances, mandamus may be used to review an interlocutory order which is by no means ‘final’ and thus appealable under federal stat- utes.”); cf. Coopers & 437 U.S., n. 6. Another avenue opened in 1998 when this Court ap- proved Federal Rule of Civil Procedure 23(f ). Seen as a response to Coopers & see, e.g., ; Soli- mine & Deciding To Decide: Class Action Certifica- tion and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f ), 41 Wm. & Mary L. Rev. 1531, 1568 (2000), Rule 23(f ) authorizes “permissive interlocutory appeal” from adverse class-certification orders in the discretion of the court of appeals, Advisory Committee’s 1998 Note on subd. (f ) of Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 815 (hereinafter Committee Note on Rule 23(f )). The Rule was adopted pursuant to see Committee Note on Rule 23(f ), which em- powers this Court, in accordance with the Rules Enabling Act, 28 U.S. C. to promulgate rules “to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for [in Rule 23(f ) reads: —————— cation, we fails each of these criteria. See 4 Congress amended the Rules Enabling Act, 28 U.S. C. et seq., 6 MICROSOFT CORP. v. BAKER Opinion of the Court “A court of appeals may permit an appeal from an or- der granting or denying class-action certification if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.”5 Courts of appeals wield “unfettered discretion” under Rule 23(f ), akin to the discretion afforded circuit courts under Committee Note on Rule 23(f ). But Rule 23(f ) otherwise “departs from the model,” for it re- quires neither district court certification nor adherence to other “limiting requirements.” Committee Note on Rule 23(f ); see at 3–4. This resolution was the product of careful calibration. By “[r]emoving the power of the district court to defeat any opportunity to appeal,” the drafters of Rule 23(f ) sought to provide “significantly greater protection against improvi- dent certification decisions than ” alone offered. Judicial Conference of the United States, Advisory Com- mittee on Civil Rules, Minutes of November 9–10, 1995. But the drafters declined to go further and provide for appeal as a matter of right. “[A] right to appeal would —————— in 1990 to authorize this Court to prescribe rules “defin[ing] when a ruling of a district court is final for the purposes of appeal under section 1291.” Congress enacted two years later, and that same year the Advisory Committee on the Federal Rules of Civil Procedure began to review proposals for what would become Rule 23(f ). See Solimine & Deciding To Decide: Class Action Certification and Interlocutory Review by the United States Courts of Appeals Under Rule 23(f ), 1563–1564, 1566, n. 189 (2000). 5 Rule 23(f ) has changed little since its adoption in 1998. See Ad- visory Committee’s 2007 and 2009 Notes on subd. (f ) of Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 820 (deleting a redundancy and increas- ing the time to petition for permission to appeal from ten to 14 days, respectively). Cite as: 582 U. S. (2017) 7 Opinion of the Court lead to abuse” on the part of plaintiffs and defendants alike, the drafters apprehended, “increas[ing] delay and expense” over “routine class certification decisions” unwor- thy of immediate appeal. (internal quotation marks omitted). See also Brief for Civil Procedure Scholars as Amici Curiae 6–7, 11–14 (“Rule 23(f ) was crafted to bal- ance the benefits of immediate review against the costs of interlocutory appeals.” (capitalization omitted)). Rule 23(f ) therefore commits the decision whether to permit interlocutory appeal from an adverse certification decision to “the sole discretion of the court of appeals.” Committee Note on Rule 23(f ); see Federal Judicial Center, T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Re- port to the Advisory Committee on Civil Rules 86 (1996) (hereinafter Federal Judicial Center Study) (“The discre- tionary nature of the proposed rule is designed to be a guard against abuse of the appellate process.”).6 The Rules Committee offered some guidance to courts of appeals considering whether to authorize appeal under Rule 23(f ). “Permission is most likely to be granted,” the Committee Note states, “when the certification decision turns on a novel or unsettled question of law,” or when “the decision on certification is likely dispositive of the litigation,” as in a death-knell or reverse death-knell situation. Committee Note on Rule 23(f ); see —————— 6 Legislation striking this balance was also introduced in Congress. See H. R. 660, 105th Cong., 1st Sess. (1997). The bill, which would have amended to provide for interlocutory appeal of adverse class determinations, likewise committed the decision whether an immediate appeal would lie exclusively to the courts of appeals: “The court of appeals may, in its discretion, permit the appeal to be taken from such determination.” Upon learning that “proposed Rule 23(f ) [was] well advanced,” the bill’s sponsor, Representative Charles Canady, joined forces with the Rules Committee. See Judicial Confer- ence of the United States, Advisory Committee on Civil Rules, Minutes of May 1–2, 1997. 8 MICROSOFT CORP. v. BAKER Opinion of the Court and n. 2. Even so, the Rule allows courts of appeals to grant or deny review “on the basis of any consideration.” Committee Note on Rule 23(f ) (emphasis added). B With this background in mind, we turn to the putative class action underlying our jurisdictional inquiry. The lawsuit is not the first of its kind. A few years after peti- tioner Microsoft Corporation released its popular video- game console, the Xbox 360, a group of Xbox owners brought a putative class action against Microsoft based on an alleged design defect in the device. See In re Microsoft Xbox 360 Scratched Disc Litigation, *1 The named plaintiffs, ad- vised by some of the same counsel representing respond- ents in this case, asserted that the Xbox scratched (and thus destroyed) game discs during normal game-playing conditions. See The District Court denied class certification, holding that individual issues of damages and causation predominated over common issues. See at *6–*7. The plaintiffs petitioned the Ninth Circuit under Rule 23(f ) for leave to appeal the class-certification denial, but the Ninth Circuit denied the request. See 851 F. Supp. 2d 1274, 1276 (WD Wash. 2012). Thereafter, the Scratched Disc plaintiffs settled their claims individually. Two years later, in 2011, respondents filed this lawsuit in the same Federal District Court. They proposed a nationwide class of Xbox owners based on the same design defect alleged in Scratched Disc Litigation. See 851 F. Supp. 2d, 75–1276. The class-certification analysis in the earlier case did not control, respondents urged, because an intervening Ninth Circuit decision constituted a change in law sufficient to overcome the deference ordi- narily due, as a matter of comity, the previous certification denial. 77–1278. The District Court disagreed. Cite as: 582 U. S. (2017) 9 Opinion of the Court Concluding that the relevant Circuit decision had not undermined Scratched Disc Litigation’s causation analy- sis, the court determined that comity required adherence to the earlier certification denial and therefore struck respondents’ class – 1281. Invoking Rule 23(f ), respondents petitioned the Ninth Circuit for permission to appeal that ruling.7 Interlocu- tory review was appropriate in this case, they argued, be- cause the District Court’s order striking the class allega- tions created a “death-knell situation”: The “small size of [their] claims ma[de] it economically irrational to bear the cost of litigating th[e] case to final judgment,” they asserted, so the order would “effectively kil[l] the case.” Pet. for Permission To Appeal Under Rule 23(f ) in No. 12–80085 (CA9), App. 118. The Ninth Circuit denied the petition. Order in No. 12–80085 (CA9, June 12, 2012), App. 121. Respondents then had several options. They could have settled their individual claims like their Scratched Disc predecessors or petitioned the District Court, pursuant to to certify the interlocutory order for appeal, see at 3–4. They could also have proceeded to litigate their case, mindful that the District Court could later reverse course and certify the proposed class. See Fed. Rule Civ. Proc. 23(c)(1)(C) (“An order that grants or denies class certification may be altered or amended before final judgment.”); Coopers & 437 U.S., (a certification order “is subject to revision in the District Court”). Or, in the event the District Court did not change —————— 7 An order striking class allegations is “functional[ly] equivalent” to an order denying class certification and therefore appealable under Rule 23(f ). 110–111, n. 2 (CA4 2013) (quoting In re Bemis Co., (CA7 2002)). See also United Airlines, and n. 4 (1977) (equating order striking class allegations with “a denial of class certification”). 10 MICROSOFT CORP. v. BAKER Opinion of the Court course, respondents could have litigated the case to final judgment and then appealed. (“an order deny- ing class certification is subject to effective review after final judgment at the behest of the named plaintiff ”). Instead of taking one of those routes, respondents moved to dismiss their case with prejudice. “After the [c]ourt has entered a final order and judgment,” respond- ents they would “appeal the order striking [their] class ” Motion To Dismiss in No. 11–cv– 00722 (WD Wash., Sept. 25, 2012), App. 122–123. In respondents’ view, the voluntary dismissal enabled them “to pursue their individual claims or to pursue relief solely on behalf of the class, should the certification decision be reversed.” Brief for Respondents 15. Microsoft stipulated to the dismissal, but maintained that respondents would have “no right to appeal” the order striking the class allegations after thus dismissing their claims. App. to Pet. for Cert. 35a–36a. The District Court granted the stipu- lated motion to dismiss, at 39a, and respondents ap- pealed. They challenged only the District Court’s inter- locutory order striking their class allegations, not the dismissal order which they invited. See Brief for Plaintiffs- Appellants in No. 12–359 (CA9). The Ninth Circuit held it had jurisdiction to entertain the appeal under The Court of Appeals rejected Microsoft’s argument that re- spondents’ voluntary dismissal, explicitly engineered to appeal the District Court’s interlocutory order striking the class allegations, impermissibly circumvented Rule 23(f ). n. 3. Because the stipulated dismissal “did not involve a settlement,” the court reasoned, it was “ ‘a suffi- ciently adverse—and thus appealable—final decision’ ” under at ); see at (relying on 7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure pp. 297–298 (3d ed. Cite as: 582 U. S. (2017) 11 Opinion of the Court 2005), for the proposition “that finality for appeal purposes can be achieved in this manner”). Satisfied of its jurisdiction, the Ninth Circuit held that the District Court had abused its discretion in striking respondents’ class The Court of Appeals “express[ed] no opinion on whether” respondents “should prevail on a motion for class certifica- tion,” ib concluding only that the District Court had misread recent Circuit precedent, see at 613–615, and therefore misapplied the comity doctrine, Whether a class should be certified, the court said, was a question for remand, “better addressed if and when [re- spondents] move[d] for class certification.” We granted certiorari to resolve a Circuit conflict over this question: Do federal courts of appeals have jurisdic- tion under and Article III of the Constitution to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice?8 577 U. S. (2016). Because we hold that does not countenance jurisdiction by these means, we do not reach the constitutional question, and therefore do not address the arguments and analysis discussed in the opinion concurring in the judgment. II “From the very foundation of our judicial system,” the general rule has been that “the whole case and every —————— 8 Compare (assuming jurisdiction under these circumstances); Gary Plastic Packaging (CA2 1990) (assuming jurisdiction after dismissal for failure to prosecute), with 245–247 (CA3 2013) (no jurisdiction under or Article III in this situation); (CA4 2011) (no jurisdiction under Article III). 12 MICROSOFT CORP. v. BAKER Opinion of the Court matter in controversy in it [must be] decided in a single appeal.” This final-judgment rule, now codified in preserves the proper balance between trial and appellate courts, minimizes the harassment and delay that would result from repeated interlocutory appeals, and promotes the efficient administration of justice. See Firestone Tire & Rubber Construing in line with these reasons for the rule, we have recognized that “finality is to be given a practical rather than a technical construction.” Eisen, 417 U.S., at 171 Repeatedly we have resisted efforts to stretch to permit appeals of right that would erode the finality principle and disserve its objectives. See, e.g., Mohawk 558 U.S. ; Digital Equipment Corp. v. Desktop Direct, Inc., ; 324–325, 330 (1940) (construing predecessor statute). Attempts to secure appeal as of right from adverse class-certification orders fit that bill. See at 2–4. Because respond- ents’ dismissal device subverts the final-judgment rule and the process Congress has established for refining that rule and for determining when nonfinal orders may be immediately appealed, see and 1292(e), the tactic does not give rise to a “final decisio[n]” under A Respondents’ voluntary-dismissal tactic, even more than the death-knell theory, invites protracted litigation and piecemeal appeals. Under the death-knell doctrine, a court of appeals could decline to hear an appeal if it de- termined that the plaintiff “ha[d] adequate incentive to continue” despite the denial of class certification. Coopers & 437 U.S., Appellate courts lack even that authority under respondents’ theory. Instead, the Cite as: 582 U. S. (2017) 13 Opinion of the Court decision whether an immediate appeal will lie resides exclusively with the plaintiff; she need only dismiss her claims with prejudice, whereupon she may appeal the district court’s order denying class certification. And, as under the death-knell doctrine, she may exercise that option more than once, stopping and starting the district court proceedings with repeated interlocutory appeals. See (death-knell doctrine offered “no assurance that the trial process [would] not again be disrupted by interlocutory review”). Consider this case. The Ninth Circuit reviewed and rejected only the District Court’s application of comity as a basis for striking respondents’ class 797 F.3d, The appeals court declined to reach Microsoft’s other arguments against class certification. See It remained open to the District Court, in the Court of Appeals’ view, to deny class certification on a differ- ent ground, and respondents would be free, under their theory, to force appellate review of any new order denying certification by again dismissing their claims. In design- ing Rule 23(f )’s provision for discretionary review, the Rules Committee sought to prevent such disruption and delay. See at 6–8.9 Respondents nevertheless maintain that their position promotes efficiency, observing that after dismissal with prejudice the case is over if the plaintiff loses on appeal. Brief for Respondents 38–39. Their way, they say, means prompt resolution of many lawsuits and infrequent use of the voluntary-dismissal tactic, for “most appeals lose” and —————— 9 Rule 23(f ) avoids delay not only by limiting class-certification ap- peals to those permitted by the federal courts of appeals, but also by specifying that “[a]n appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” See (“Rule 23(f ) is drafted to avoid delay.”). Respondents’ dismissal tactic, by contrast, halts district court proceedings whenever invoked. 14 MICROSOFT CORP. v. BAKER Opinion of the Court few plaintiffs will “take th[e] risk” of losing their claims for good. at 35–36. Respondents overlook the prospect that plaintiffs with weak merits claims may readily as- sume that risk, mindful that class certification often leads to a hefty settlement. See Coopers & 437 U.S., (defendant facing the specter of classwide liability may “abandon a meritorious defense”). Indeed, the same argument—that the case was over if the plaintiff lost on appeal—was evident in the death-knell context, yet this Court determined that the potential for piecemeal litiga- tion was “apparent and serious.”10 And that potential is greater still under respondents’ theory, where plaintiffs alone determine whether and when to appeal an adverse certification ruling. B Another vice respondents’ theory shares with the death- knell doctrine, both allow indiscriminate appellate review of interlocutory orders. Beyond disturbing the “ap- propriate relationship between the respective courts,” respondents’ dismissal tactic undercuts Rule 23(f )’s discretionary re- gime. This consideration is “[o]f prime significance to the jurisdictional issue before us.” (pendent appellate juris- diction in collateral-order context would undermine ); see at 3–4 (death-knell doctrine imper- missibly circumvented ). —————— 10 The very premise of the death-knell doctrine was that plaintiffs “would not pursue their claims individually.” Coopers & 437 U.S., Having pressed such an argument for the benefit of immediate review, a death-knell plaintiff who lost on appeal would encounter the general proposition, long laid down, that “where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” Cite as: 582 U. S. (2017) 15 Opinion of the Court In the Rules Enabling Act, as earlier recounted, Con- gress authorized this Court to determine when a decision is final for purposes of and to provide for appellate review of interlocutory orders not covered by statute. See at 5–6, and n. 4. These changes are to come from rulemaking, however, not judicial decisions in particular controversies or inventive litigation ploys. See 514 U.S., 8. In this case, the rulemaking process has dealt with the matter, yielding a “measured, practical solu- tio[n]” to the questions whether and when adverse certifi- cation orders may be immediately appealed. Mohawk Over years the Advisory Committee on the Federal Rules of Civil Procedure stud- ied the data on class-certification rulings and appeals, weighed various proposals, received public comment, and refined the draft rule and Committee Note. See Solimine & –1566, and nn. 178–189; Federal Judicial Center Study 80–87. Rule 23(f ) reflects the rulemakers’ informed assessment, permitting, as at 5–7, interlocutory appeals of ad- verse certification orders, whether sought by plaintiffs or defendants, solely in the discretion of the courts of ap- peals. That assessment “warrants the Judiciary’s full respect.” 514 U.S., 8; see Mohawk –119 (THOMAS, J., concurring in part and concurring in judgment). Here, however, the Ninth Circuit, after denying re- spondents permission to appeal under Rule 23(f ), never- theless assumed jurisdiction of their appeal challenging only the District Court’s order striking the class allega- tions. See –10. According to respondents, even plaintiffs who altogether bypass Rule 23(f ) may force an appeal by dismissing their claims with prejudice. See Tr. of Oral Arg. 34. Rule 23(f ), respondents say, is irrelevant, for it “address[es] interlocutory orders,” whereas this case involves “an actual final judgment.” Brief for Respondents 16 MICROSOFT CORP. v. BAKER Opinion of the Court 26, 28. We are not persuaded. If respondents’ voluntary- dismissal tactic could yield an appeal of right, Rule 23(f )’s careful calibration—as well as Congress’ designation of rulemaking “as the preferred means for determining whether and when prejudgment orders should be immedi- ately appealable,” Mohawk (majority opinion)—“would be severely undermined,” 514 U.S., 7. Respondents, after all, “[sought] review of only the [inherently interlocutory] orde[r]” strik- ing their class allegations; they “d[id] not complain of the ‘final’ orde[r] that dismissed their cas[e].” (CA3 2013). Plaintiffs in putative class actions cannot transform a tentative interlocutory order, see into a final judgment within the meaning of simply by dismiss- ing their claims with prejudice—subject, no less, to the right to “revive” those claims if the denial of class certifi- cation is reversed on appeal, see Brief for Respondents 45; Tr. of Oral Arg. 31 (assertion by respondents’ counsel that, if the appeal succeeds, “everything would spring back to life” on remand). Were respondents’ reasoning embraced by this Court, “Congress[’] final decision rule would end up a pretty puny one.” Digital Equipment Corp., 511 U.S., at 872. Contrary to respondents’ argument, firm final-judgment rule is not satisfied whenever a litigant persuades a district court to issue an order purporting to end the litigation. Finality, we have long cautioned, “is not a technical concept of temporal or physical termina- tion.” It is one “means [geared to] achieving a healthy legal system,” ib and its contours are determined accordingly, see11 —————— 11 Respondents also invoke our decision in United but that case—a civil antitrust Cite as: 582 U. S. (2017) 17 Opinion of the Court C The one-sidedness of respondents’ voluntary-dismissal device “reinforce[s] our conclusion that [it] does not sup- port appellate jurisdiction of prejudgment orders denying class certification.” Coopers & 437 U.S., ; see Respondents’ theory permits plaintiffs only, never defendants, to force an immediate appeal of an adverse certification ruling. Yet the “class issue” may be just as important to defendants, Coopers & 437 U.S., for “[a]n order granting certification may force a defendant to settle rather than run the risk of potentially ruinous liability,” Committee Note on Rule 23(f ); see and n. 2 (defendants may face a “reverse death knell”). Accordingly, we recognized in Coopers & that “[w]hatever similarities or differ- ences there are between plaintiffs and defendants in this context involve questions of policy for Congress.” 437 U.S., Congress chose the rulemaking process to settle the matter, and the rulemakers did so by adopting Rule 23(f )’s evenhanded prescription. It is not the prerog- ative of litigants or federal courts to disturb that settle- ment. See at 14–15. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of this case. —————— enforcement action—involved neither class-action certification nor the sort of dismissal tactic at issue here. See (the Government “did not consent to a judgment against [it]” (internal quotation marks omitted)). Cite as: 582 U. S. (2017) 1 THOMAS THOMAS J., concurring J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 15–457 MICROSOFT CORPORATION, PETITIONER v. SETH BAKER, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 12, 2017] JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE ALITO join, concurring in the judgment.

Justice Thomas

concurring

Microsoft Corp. v. Baker

2017-06-12

https://www.courtlistener.com/opinion/4403813/microsoft-corp-v-baker/

https://www.courtlistener.com/api/rest/v3/clusters/4403813/

2016-053

I agree with the Court that the Court of Appeals lacked jurisdiction over respondents’ appeal, but I would ground that conclusion in Article III of the Constitution instead of 28 U.S. C. §1291. I therefore concur only in the judgment. The plaintiffs in this case, respondents here, sued Mi- crosoft, petitioner here, to recover damages after they purchased allegedly faulty video game consoles that Mi- crosoft manufactured. The plaintiffs brought claims for themselves (individual claims) and on behalf of a putative class of similarly situated consumers (class allegations). Early in the litigation, the District Court granted Mi- crosoft’s motion to strike the class allegations, effectively declining to certify the class. The Court of Appeals denied permission to appeal that decision under Federal Rule of Civil Procedure 23(f ), which requires a party to obtain permission from the court of appeals before appealing a decision regarding class certification. The plaintiffs decided not to pursue their individual claims, instead stipulating to a voluntary dismissal of those claims with prejudice. They then filed a notice of appeal from the voluntary dismissal order. On appeal, they did not ask the Court of Appeals to reverse the Dis- trict Court’s dismissal of their individual claims. They 2 MICROSOFT CORP. v. BAKER THOMAS THOMAS , J., concurring , J., concurring in judgment instead asked the Court of Appeals to reverse the order striking their class allegations. The question presented in this case is whether the Court of Appeals had jurisdiction to hear the appeal under both §1291, which grants appel- late jurisdiction to the courts of appeals over “final deci- sions” by district courts, and under Article III of the Con- stitution, which limits the jurisdiction of federal courts to “cases” and “controversies.” The Court today holds that the Court of Appeals lacked jurisdiction under §1291 because the voluntary dismissal with prejudice did not result in a “final decision.” I dis- agree with that holding. A decision is “final” for purposes of §1291 if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). The order here dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment. See App. to Pet. for Cert. 39a (“direct[ing] the Clerk to enter Judgment . . . and close th[e] case”). The Court reaches the opposite conclusion, relying not on the text of §1291 or this Court’s precedents about final- ity, but on Rule 23(f ). Rule 23(f ) makes interlocutory orders regarding class certification appealable only with the permission of the court of appeals. The Court con- cludes that the plaintiffs’ “voluntary dismissal” “does not qualify as a ‘final decision’ ” because allowing the plain- tiffs’ appeal would “subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders.” Ante, at 2. The Court’s conclusion does not follow from its reason- ing. Whether a dismissal with prejudice is “final” depends on the meaning of §1291, not Rule 23(f ). Rule 23(f ) says nothing about finality, much less about the finality of an order dismissing individual claims with prejudice. I agree with the Court that the plaintiffs are trying to avoid the Cite as: 582 U. S. ____ (2017) 3 THOMAS THOMAS , J., concurring , J., concurring in judgment requirements for interlocutory appeals under Rule 23(f ), but our view of the balance struck in that rule should not warp our understanding of finality under §1291. Although I disagree with the Court’s reading of §1291, I agree that the plaintiffs could not appeal in these circum- stances. In my view, they could not appeal because the Court of Appeals lacked jurisdiction under Article III of the Constitution. The “judicial Power” of the United States extends only to “Cases” and “Controversies.” Art. III, §2. This requirement limits the jurisdiction of the federal courts to issues presented “in an adversary con- text,” Flast v. Cohen, 392 U.S. 83, 95 (1968), in which the parties maintain an “actual” and “concrete” interest, Campbell-Ewald Co. v. Gomez, 577 U. S. ___, ___ (2016) (slip op., at 6) (internal quotation marks omitted). Put another way, “Article III denies federal courts the power to decide questions that cannot affect the rights of litigants in the case before them, and confines them to resolving real and substantial controversies admitting of specific relief through a decree of a conclusive character.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (inter- nal quotation marks, citation, and alteration omitted). The plaintiffs’ appeal from their voluntary dismissal did not satisfy this jurisdictional requirement. When the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and dis- avowed any right to relief from Microsoft. The parties thus were no longer adverse to each other on any claims, and the Court of Appeals could not “affect the[ir] rights” in any legally cognizable manner. Ibid. Indeed, it has long been the rule that a party may not appeal from the voluntary dismissal of a claim, since the party consented to the judgment against it. See, e.g., Evans v. Phillips, 4 Wheat. 73 (1819); Lord v. Veazie, 8 How. 251, 255–256 (1850); United States v. Babbitt, 104 U.S. 767 (1882); Deakins v. Monaghan, 484 U.S. 193, 199–200 (1988). 4 MICROSOFT CORP. v. BAKER THOMAS THOMAS , J., concurring , J., concurring in judgment The plaintiffs contend that their interest in reversing the order striking their class allegations is sufficient to satisfy Article III’s case-or-controversy requirement, but they misunderstand the status of putative class actions. Class allegations, without an underlying individual claim, do not give rise to a “case” or “controversy.” Those allega- tions are simply the means of invoking a procedural mechanism that enables a plaintiff to litigate his individ- ual claims on behalf of a class. See Shady Grove Orthope- dic Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010) (plurality opinion). Thus, because the Court of Appeals lacked Article III jurisdiction to adjudicate the individual claims, it could not hear the plaintiffs’ appeal of the order striking their class allegations. Plaintiffs’ representation that they hope to “revive their [individual] claims should they prevail” on the appeal of the order striking their class allegations does not under- mine this conclusion. Brief for Respondents 45. This Court has interpreted Article III “to demand that an ac- tual controversy be extant at all stages of review, not merely at the time the complaint is filed.” Campbell Ewald Co., supra, at ___ (slip op., at 6) (internal quotation marks and alterations omitted). And in any event, a favorable ruling on class certification would not “revive” their individual claims: A court’s decision about class allegations “in no way touch[es] the merits” of those claims. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 482 (1978). * * * Because I would hold that the Court of Appeals lacked jurisdiction under Article III to consider respondents’ appeal, I concur in the judgment

I agree with the Court that the Court of Appeals lacked jurisdiction over respondents’ appeal, but I would ground that conclusion in Article III of the Constitution instead of 28 U.S. C. I therefore concur only in the judgment. The plaintiffs in this case, respondents here, sued Mi- crosoft, petitioner here, to recover damages after they purchased allegedly faulty video game consoles that Mi- crosoft manufactured. The plaintiffs brought claims for themselves (individual claims) and on behalf of a putative class of similarly situated consumers (class allegations). Early in the litigation, the District Court granted Mi- crosoft’s motion to strike the class allegations, effectively declining to certify the class. The Court of Appeals denied permission to appeal that decision under Federal Rule of Civil Procedure 23(f ), which requires a party to obtain permission from the court of appeals before appealing a decision regarding class certification. The plaintiffs decided not to pursue their individual claims, instead stipulating to a voluntary dismissal of those claims with prejudice. They then filed a notice of appeal from the voluntary dismissal order. On appeal, they did not ask the Court of Appeals to reverse the Dis- trict Court’s dismissal of their individual claims. They 2 MICROSOFT CORP. v. BAKER THOMAS THOMAS J., concurring J., concurring in judgment instead asked the Court of Appeals to reverse the order striking their class allegations. The question presented in this case is whether the Court of Appeals had jurisdiction to hear the appeal under both which grants appel- late jurisdiction to the courts of appeals over “final deci- sions” by district courts, and under Article III of the Con- stitution, which limits the jurisdiction of federal courts to “cases” and “controversies.” The Court today holds that the Court of Appeals lacked jurisdiction under because the voluntary dismissal with prejudice did not result in a “final decision.” I dis- agree with that holding. A decision is “final” for purposes of if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” The order here dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment. See App. to Pet. for Cert. 39a (“direct[ing] the Clerk to enter Judgment and close th[e] case”). The Court reaches the opposite conclusion, relying not on the text of or this Court’s precedents about final- ity, but on Rule 23(f ). Rule 23(f ) makes interlocutory orders regarding class certification appealable only with the permission of the court of appeals. The Court con- cludes that the plaintiffs’ “voluntary dismissal” “does not qualify as a ‘final decision’ ” because allowing the plain- tiffs’ appeal would “subvert the balanced solution Rule 23(f ) put in place for immediate review of class-action orders.” Ante, at 2. The Court’s conclusion does not follow from its reason- ing. Whether a dismissal with prejudice is “final” depends on the meaning of not Rule 23(f ). Rule 23(f ) says nothing about finality, much less about the finality of an order dismissing individual claims with prejudice. I agree with the Court that the plaintiffs are trying to avoid the Cite as: 582 U. S. (2017) 3 THOMAS THOMAS J., concurring J., concurring in judgment requirements for interlocutory appeals under Rule 23(f ), but our view of the balance struck in that rule should not warp our understanding of finality under Although I disagree with the Court’s reading of I agree that the plaintiffs could not appeal in these circum- stances. In my view, they could not appeal because the Court of Appeals lacked jurisdiction under Article III of the Constitution. The “judicial Power” of the United States extends only to “Cases” and “Controversies.” Art. III, This requirement limits the jurisdiction of the federal courts to issues presented “in an adversary con- text,” in which the parties maintain an “actual” and “concrete” interest, Campbell-Ewald Co. v. Gomez, 577 U. S. (2016) (slip op., at 6) (internal quotation marks omitted). Put another way, “Article III denies federal courts the power to decide questions that cannot affect the rights of litigants in the case before them, and confines them to resolving real and substantial controversies admitting of specific relief through a decree of a conclusive character.” Lewis v. Continental Bank Corp., (inter- nal quotation marks, citation, and alteration omitted). The plaintiffs’ appeal from their voluntary dismissal did not satisfy this jurisdictional requirement. When the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and dis- avowed any right to relief from Microsoft. The parties thus were no longer adverse to each other on any claims, and the Court of Appeals could not “affect the[ir] rights” in any legally cognizable manner. Indeed, it has long been the rule that a party may not appeal from the voluntary dismissal of a claim, since the party consented to the judgment against it. See, e.g., Evans v. Phillips, 4 Wheat. 73 (1819); ; United ; Deakins v. Monaghan, 4 MICROSOFT CORP. v. BAKER THOMAS THOMAS J., concurring J., concurring in judgment The plaintiffs contend that their interest in reversing the order striking their class allegations is sufficient to satisfy Article III’s case-or-controversy requirement, but they misunderstand the status of putative class actions. Class allegations, without an underlying individual claim, do not give rise to a “case” or “controversy.” Those allega- tions are simply the means of invoking a procedural mechanism that enables a plaintiff to litigate his individ- ual claims on behalf of a class. See Shady Grove Orthope- dic Associates, P. (2010) (plurality opinion). Thus, because the Court of Appeals lacked Article III jurisdiction to adjudicate the individual claims, it could not hear the plaintiffs’ appeal of the order striking their class allegations. Plaintiffs’ representation that they hope to “revive their [individual] claims should they prevail” on the appeal of the order striking their class allegations does not under- mine this conclusion. Brief for Respondents 45. This Court has interpreted Article III “to demand that an ac- tual controversy be extant at all stages of review, not merely at the time the complaint is filed.” Campbell Ewald Co., at (slip op., at 6) (internal quotation marks and alterations omitted). And in any event, a favorable ruling on class certification would not “revive” their individual claims: A court’s decision about class allegations “in no way touch[es] the merits” of those claims. Gardner v. Westinghouse Broadcasting Co., * * * Because I would hold that the Court of Appeals lacked jurisdiction under Article III to consider respondents’ appeal, I concur in the judgment

per_curiam

per_curiam

Adams v. Florida Power Corp.

2002-04-01

https://www.courtlistener.com/opinion/118494/adams-v-florida-power-corp/

https://www.courtlistener.com/api/rest/v3/clusters/118494/

2001-036

The writ of certiorari is dismissed as improvidently granted. It is so ordered.

The writ of certiorari is dismissed as improvidently granted. It is so ordered.

Justice Ginsburg

majority

Kimbrough v. United States

2007-12-10

https://www.courtlistener.com/opinion/145841/kimbrough-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145841/

2007-007

This Court's remedial opinion in United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), instructed district courts to read the United States Sentencing Guidelines as "effectively advisory," id., at 245, 125 S. Ct. 738. In accord with 18 U.S.C. § 3553(a), the Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence. Booker further instructed that "reasonableness" is the standard controlling appellate review of the sentences district courts impose. Under the statute criminalizing the manufacture and distribution of crack cocaine, 21 U.S.C. § 841, and the relevant Guidelines prescription, § 2D1.1, a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. The question here presented is whether, as the Court of Appeals held in this case, "a sentence ... outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses." 174 Fed.Appx. 798, 799 (C.A.4 2006) (per curiam). We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing. 18 U.S.C. § 3553(a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses. I In September 2004, petitioner Derrick Kimbrough was indicted in the United States District Court for the Eastern District of Virginia and charged with four offenses: conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crack cocaine; possession with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drugtrafficking offense. Kimbrough pleaded guilty to all four charges. Under the relevant statutes, Kimbrough's plea subjected him to an aggregate sentence of 15 years to life in prison: 10 years to life for the three drug offenses, plus a consecutive term of 5 years to life for the firearm offense.[1] In order to determine *565 the appropriate sentence within this statutory range, the District Court first calculated Kimbrough's sentence under the advisory Sentencing Guidelines.[2] Kimbrough's guilty plea acknowledged that he was accountable for 56 grams of crack cocaine and 92.1 grams of powder cocaine. This quantity of drugs yielded a base offense level of 32 for the three drug charges. See United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov.2004) (USSG). Finding that Kimbrough, by asserting sole culpability for the crime, had testified falsely at his codefendant's trial, the District Court increased his offense level to 34. See § 3C1.1. In accord with the presentence report, the court determined that Kimbrough's criminal history category was II. An offense level of 34 and a criminal history category of II yielded a Guidelines range of 168 to 210 months for the three drug charges. See id., ch. 5, pt. A, Sentencing Table. The Guidelines sentence for the firearm offense was the statutory minimum, 60 months. See USSG § 2K2.4(b). Kimbrough's final advisory Guidelines range was thus 228 to 270 months, or 19 to 22.5 years. A sentence in this range, in the District Court's judgment, would have been "greater than necessary" to accomplish the purposes of sentencing set forth in 18 U.S.C. § 3553(a). App. 72. As required by § 3553(a), the court took into account the "nature and circumstances" of the offense and Kimbrough's "history and characteristics." Id., at 72-73. The court also commented that the case exemplified the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing." Id., at 72. In this regard, the court contrasted Kimbrough's Guidelines range of 228 to 270 months with the range that would have applied had he been accountable for an equivalent amount of powder cocaine: 97 to 106 months, inclusive of the 5-year mandatory minimum for the firearm charge, see USSG § 2D1.1(c); id., ch. 5, pt. A, Sentencing Table. Concluding that the statutory minimum sentence was "clearly long enough" to accomplish the objectives listed in § 3553(a), the court sentenced Kimbrough to 15 years, or 180 months, in prison plus 5 years of supervised release. App. 74-75.[3] In an unpublished per curiam opinion, the Fourth Circuit vacated the sentence. Under Circuit precedent, the Court of Appeals observed, a sentence "outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses." 174 Fed.Appx., at 799 (citing United States v. Eura, 440 F.3d 625, 633-634 (C.A.4 2006)). We granted certiorari, 551 U.S. ___, 127 S. Ct. 2933, 168 L. Ed. 2d 261 (2007), to determine whether the crack/powder disparity adopted in the United States Sentencing *566 Guidelines has been rendered "advisory" by our decision in Booker.[4] II We begin with some background on the different treatment of crack and powder cocaine under the federal sentencing laws. Crack and powder cocaine are two forms of the same drug. Powder cocaine, or cocaine hydrochloride, is generally inhaled through the nose; it may also be mixed with water and injected. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 5, 12 (Feb.1995), available at http://www.ussc.gov/crack/exec.htm (hereinafter 1995 Report). (All Internet materials as visited Dec. 7, 2007, and included in Clerk of Court's case file.) Crack cocaine, a type of cocaine base, is formed by dissolving powder cocaine and baking soda in boiling water. Id., at 14. The resulting solid is divided into single-dose "rocks" that users smoke. Ibid. The active ingredient in powder and crack cocaine is the same. Id., at 9. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high. Id., at 15-19.[5] Although chemically similar, crack and powder cocaine are handled very differently for sentencing purposes. The 100 — to — 1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs. See United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002), available at http://www.ussc.gov/r_congress/02crack/ 2002crackrpt.pdf (hereinafter 2002 Report).[6] This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack. See 1995 Report 193-194. A The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), 100 Stat. 3207. The 1986 Act created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress sought "to link the ten-year mandatory minimum trafficking prison term to major drug dealers and to link the five-year minimum term to serious traffickers." 1995 Report 119. The 1986 Act uses the weight of the drugs involved in *567 the offense as the sole proxy to identify "major" and "serious" dealers. For example, any defendant responsible for 100 grams of heroin is subject to the five-year mandatory minimum, see 21 U.S.C. § 841(b)(1)(B)(i) (2000 ed. and Supp V), and any defendant responsible for 1,000 grams of heroin is subject to the ten-year mandatory minimum, see § 841(b)(1)(A)(i). Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern: "Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members' minds a problem of overwhelming dimensions." 1995 Report 121. Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular. See 2002 Report 90. Based on these assumptions, the 1986 Act adopted a "100 — to — 1 ratio" that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act's five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, 21 U.S.C. § 841(b)(1)(B)(ii), (iii); its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder, § 841(b)(1)(A)(ii), (iii). While Congress was considering adoption of the 1986 Act, the Sentencing Commission was engaged in formulating the Sentencing Guidelines.[7] In the main, the Commission developed Guidelines sentences using an empirical approach based on data about past sentencing practices, including 10,000 presentence investigation reports. See USSG § 1A.1, intro. comment., pt. A, ¶ 3. The Commission "modif[ied] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like." Rita v. United States, 551 U.S. ___, ___, 127 S. Ct. 2456, 2464, 168 L. Ed. 2d 203 (2007). The Commission did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses. Instead, it employed the 1986 Act's weightdriven scheme. The Guidelines use a drug quantity table based on drug type and weight to set base offense levels for drug trafficking offenses. See USSG § 2D1.1(c). In setting offense levels for crack and powder cocaine, the Commission, in line with the 1986 Act, adopted the 100 — to — 1 ratio. The statute itself specifies only two quantities of each drug, but the Guidelines "go further and set sentences for the full range of possible drug quantities using the same 100 — to — 1 quantity ratio." 1995 Report 1. The Guidelines' drug quantity table sets base offense levels ranging from 12, for offenses involving less than 250 milligrams of crack (or 25 grams of powder), to 38, for offenses involving more than 1.5 kilograms of crack (or 150 kilograms of powder). USSG § 2D1.1(c).[8] *568 B Although the Commission immediately used the 100 — to — 1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100 — to — 1 ratio, the Commission concluded that the disparity "fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act." 2002 Report 91. In a series of reports, the Commission identified three problems with the crack/powder disparity. First, the Commission reported, the 100 — to — 1 ratio rested on assumptions about "the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support." Ibid.; see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/ cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far "overstate[s]" both "the relative harmfulness" of crack cocaine, and the "seriousness of most crack cocaine offenses"). For example, the Commission found that crack is associated with "significantly less trafficking-related violence ... than previously assumed." 2002 Report 100. It also observed that "the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure." Id., at 94. The Commission furthermore noted that "the epidemic of crack cocaine use by youth never materialized to the extent feared." Id., at 96. Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act's goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. See 1995 Report 66-67. But the 100 — to — 1 ratio can lead to the "anomalous" result that "retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced." Id., at 174. Finally, the Commission stated that the crack/powder sentencing differential "fosters disrespect for and lack of confidence in the criminal justice system" because of a "widely-held perception" that it "promotes unwarranted disparity based on race." 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100 — to — 1 ratio are imposed "primarily upon black offenders." Ibid. Despite these observations, the Commission's most recent reports do not urge identical treatment of crack and powder cocaine. In the Commission's view, "some differential in the quantity-based penalties" for the two drugs is warranted, id., at 102, because crack is more addictive than powder, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime, see id., at 93-94, 101-102. But the 100 — to — 1 crack/powder ratio, the Commission concluded, significantly overstates the differences between the two forms of the drug. Accordingly, the Commission recommended that the ratio be "substantially" reduced. Id., at viii. *569 C The Commission has several times sought to achieve a reduction in the crack/powder ratio. In 1995, it proposed amendments to the Guidelines that would have replaced the 100 — to — 1 ratio with a 1 — to — 1 ratio. Complementing that change, the Commission would have installed special enhancements for trafficking offenses involving weapons or bodily injury. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed.Reg. 25075-25077 (1995). Congress, acting pursuant to 28 U.S.C. § 994(p),[9] rejected the amendments. See Pub.L. 104-38, § 1, 109 Stat. 334. Simultaneously, however, Congress directed the Commission to "propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines." § 2(a)(2), id., at 335. In response to this directive, the Commission issued reports in 1997 and 2002 recommending that Congress change the 100 — to — 1 ratio prescribed in the 1986 Act. The 1997 Report proposed a 5 — to — 1 ratio. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 2 (Apr. 1997), http://www.ussc.gov/r_congress/newcrack.pdf. The 2002 Report recommended lowering the ratio "at least" to 20 to 1. 2002 Report viii. Neither proposal prompted congressional action. The Commission's most recent report, issued in 2007, again urged Congress to amend the 1986 Act to reduce the 100 — to — 1 ratio. This time, however, the Commission did not simply await congressional action. Instead, the Commission adopted an ameliorating change in the Guidelines. See 2007 Report 9. The alteration, which became effective on November 1, 2007, reduces the base offense level associated with each quantity of crack by two levels. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28571-28572 (2007).[10] This modest amendment yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. See ibid.[11] Describing the amendment as "only ... a partial remedy" for the problems generated by the crack/powder disparity, the Commission noted that "[a]ny comprehensive solution requires appropriate legislative action by Congress." 2007 Report 10. III With this history of the crack/powder sentencing ratio in mind, we next consider the status of the Guidelines tied to the ratio after our decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). In Booker, the Court held that the mandatory Sentencing Guidelines *570 system violated the Sixth Amendment. See id., at 226-227, 125 S. Ct. 738. The Booker remedial opinion determined that the appropriate cure was to sever and excise the provision of the statute that rendered the Guidelines mandatory, 18 U.S.C. § 3553(b)(1) (2000 ed., Supp. IV).[12] This modification of the federal sentencing statute, we explained, "makes the Guidelines effectively advisory." 543 U.S., at 245, 125 S. Ct. 738. The statute, as modified by Booker, contains an overarching provision instructing district courts to "impose a sentence sufficient, but not greater than necessary" to accomplish the goals of sentencing, including "to reflect the seriousness of the offense," "to promote respect for the law," "to provide just punishment for the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a) (2000 ed. and Supp. V). The statute further provides that, in determining the appropriate sentence, the court should consider a number of factors, including "the nature and circumstances of the offense," "the history and characteristics of the defendant," "the sentencing range established" by the Guidelines, "any pertinent policy statement" issued by the Sentencing Commission pursuant to its statutory authority, and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Ibid. In sum, while the statute still requires a court to give respectful consideration to the Guidelines, see Gall v. United States, ante, ___ U.S., at ___, ___, 128 S. Ct. 586, at 594, 596, 2007 WL 4292116, Booker "permits the court to tailor the sentence in light of other statutory concerns as well," 543 U.S., at 245-246, 125 S. Ct. 738. The Government acknowledges that the Guidelines "are now advisory" and that, as a general matter, "courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines." Brief for United States 16; cf. Rita v. United States, 551 U.S. ___, ___, 127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203 (2007) (a district court may consider arguments that "the Guidelines sentence itself fails properly to reflect § 3553(a) considerations"). But the Government contends that the Guidelines adopting the 100 — to — 1 ratio are an exception to the "general freedom that sentencing courts have to apply the [§ 3553(a)] factors." Brief for United States 16. That is so, according to the Government, because the ratio is a "specific policy determinatio[n] that Congress has directed sentencing courts to observe." Id., at 25. The Government offers three arguments in support of this position. We consider each in turn. A As its first and most heavily pressed argument, the Government urges that the 1986 Act itself prohibits the Sentencing Commission and sentencing courts from disagreeing with the 100 — to — 1 ratio.[13] The Government acknowledges that *571 the "Congress did not expressly direct the Sentencing Commission to incorporate the 100:1 ratio in the Guidelines." Brief for United States 33 (brackets and internal quotation marks omitted). Nevertheless, it asserts that the Act "[i]mplicit[ly]" requires the Commission and sentencing courts to apply the 100 — to — 1 ratio. Id., at 32. Any deviation, the Government urges, would be "logically incoherent" when combined with mandatory minimum sentences based on the 100 — to — 1 ratio. Id., at 33. This argument encounters a formidable obstacle: It lacks grounding in the text of the 1986 Act. The statute, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years and the maximum term is 40 years. A person with 50 grams or more of crack cocaine must be sentenced to a minimum of 10 years and the maximum term is life. The statute says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence. See Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341, 125 S. Ct. 694, 160 L. Ed. 2d 708 (2005) ("We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply ...."). Drawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms. For example, Congress has specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders "at or near" the statutory maximum. 28 U.S.C. § 994(h). See also § 994(i) ("The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment" for specified categories of offenders.). Our cautious reading of the 1986 Act draws force from Neal v. United States, 516 U.S. 284, 116 S. Ct. 763, 133 L. Ed. 2d 709 (1996). That case involved different methods of calculating lysergic acid diethylamide (LSD) weights, one applicable in determining statutory minimum sentences, the other controlling the calculation of Guidelines ranges. The 1986 Act sets mandatory minimum sentences based on the weight of "a mixture or substance containing a detectable amount" of LSD. 21 U.S.C. § 841(b)(1)(A)(v), (B)(v). Prior to Neal, we had interpreted that language to include the weight of the carrier medium (usually blotter paper) on which LSD is absorbed even though the carrier is usually far heavier than the LSD itself. See Chapman v. United States, 500 U.S. 453, 468, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991). Until 1993, the Sentencing Commission had interpreted the relevant Guidelines in the same way. That year, however, the Commission changed its approach and "instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams." Neal, 516 U.S., at 287, 116 S. Ct. 763 (citing USSG § 2D1.1(c), n. (H) (Nov. 1995)). The Commission's change significantly lowered the Guidelines range applicable to most LSD offenses, but defendants remained subject to higher statutory minimum sentences based on the combined weight of the pure drug and its carrier medium. The defendant in Neal argued that the revised Guidelines and the statute should be interpreted consistently and that the "presumptive-weight method of the Guidelines should also control the mandatory minimum calculation." 516 U.S., at 287, 116 S. Ct. 763. We rejected that argument, emphasizing that the Commission had not purported to interpret the statute and could not in any event overrule our *572 decision in Chapman. See 516 U.S., at 293-295, 116 S. Ct. 763. If the Government's current position were correct, then the Guidelines involved in Neal would be in serious jeopardy. We have just recounted the reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100 — to — 1 ratio to all quantities of crack cocaine. Those same reasons could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating the weight of LSD for Guidelines purposes. Yet our opinion in Neal never questioned the validity of the altered Guidelines. To the contrary, we stated: "Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable `approach' to calculating LSD quantities." Id., at 295, 116 S. Ct. 763.[14] If the 1986 Act does not require the Commission to adhere to the Act's method for determining LSD weights, it does not require the Commission — or, after Booker, sentencing courts — to adhere to the 100 — to — 1 ratio for crack cocaine quantities other than those that trigger the statutory mandatory minimum sentences. B In addition to the 1986 Act, the Government relies on Congress' disapproval of the Guidelines amendment that the Sentencing Commission proposed in 1995. Congress "not only disapproved of the 1:1 ratio," the Government urges; it also made clear "that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio." Brief for United States 35. It is true that Congress rejected the Commission's 1995 proposal to place a 1 — to — 1 ratio in the Guidelines, and that Congress also expressed the view that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine." Pub.L. 104-38, § 2(a)(1)(A), 109 Stat. 334. But nothing in Congress' 1995 reaction to the Commission-proposed 1— to — 1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress' 1995 action required the Commission to recommend a "revision of the drug quantity ratio of crack cocaine to powder cocaine." § 2(a)(2), id., at 335. The Government emphasizes that Congress required the Commission to propose changes to the 100 — to — 1 ratio in both the 1986 Act and the Guidelines. This requirement, the Government contends, implicitly foreclosed any deviation from the 100 — to — 1 ratio in the Guidelines (or by *573 sentencing courts) in the absence of a corresponding change in the statute. See Brief for United States 35-36. But it does not follow as the night follows the day that, by calling for recommendations to change the statute, Congress meant to bar any Guidelines alteration in advance of congressional action. The more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission's criticisms of the 100 — to — 1 ratio, see Part II-B, supra, concerned the exorbitance of the crack/powder disparity in both contexts. Moreover, as a result of the 2007 amendment, see supra, at 569, the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed.Reg. 28571-28572. Adopting the Government's analysis, the amended Guidelines would conflict with Congress' 1995 action, and with the 1986 Act, because the current Guidelines ratios deviate from the 100 — to — 1 statutory ratio. Congress, however, did not disapprove or modify the Commission-initiated 2007 amendment. Ordinarily, we resist reading congressional intent into congressional inaction. See Bob Jones Univ. v. United States, 461 U.S. 574, 600, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983). But in this case, Congress failed to act on a proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28 U.S.C. § 994(p). If nothing else, this tacit acceptance of the 2007 amendment undermines the Government's position, which is itself based on implications drawn from congressional silence. C Finally, the Government argues that if district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio, unwarranted disparities of two kinds will ensue. See 18 U.S.C. § 3553(a)(6) (sentencing courts shall consider "the need to avoid unwarranted sentence disparities"). First, because sentencing courts remain bound by the mandatory minimum sentences prescribed in the 1986 Act, deviations from the 100 — to — 1 ratio could result in sentencing "cliffs" around quantities that trigger the mandatory minimums. Brief for United States 33 (internal quotation marks omitted). For example, a district court could grant a sizable downward variance to a defendant convicted of distributing 49 grams of crack but would be required by the statutory minimum to impose a much higher sentence on a defendant responsible for only 1 additional gram. Second, the Government maintains that, if district courts are permitted to vary from the Guidelines based on their disagreement with the crack/powder disparity, "defendants with identical real conduct will receive markedly different sentences, depending on nothing more than the particular judge drawn for sentencing." Id., at 40. Neither of these arguments persuades us to hold the crack/powder ratio untouchable by sentencing courts. As to the first, the LSD Guidelines we approved in Neal create a similar risk of sentencing "cliffs." An offender who possesses LSD on a carrier medium weighing ten grams is subject to the ten-year mandatory minimum, see 21 U.S.C. § 841(b)(1)(A)(v), but an offender whose carrier medium weighs slightly less may receive a considerably lower sentence based on the Guidelines' presumptive-weight methodology. Concerning the second disparity, it is unquestioned that uniformity remains an important goal of sentencing. As we explained in Booker, however, advisory Guidelines combined with appellate review for reasonableness *574 and ongoing revision of the Guidelines in response to sentencing practices will help to "avoid excessive sentencing disparities." 543 U.S., at 264, 125 S. Ct. 738. These measures will not eliminate variations between district courts, but our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted. See id., at 263, 125 S. Ct. 738 ("We cannot and do not claim that use of a `reasonableness' standard will provide the uniformity that Congress originally sought to secure [through mandatory Guidelines]."). And as to crack cocaine sentences in particular, we note a congressional control on disparities: possible variations among district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act.[15] Moreover, to the extent that the Government correctly identifies risks of "unwarranted sentence disparities" within the meaning of 18 U.S.C. § 3353(a)(6), the proper solution is not to treat the crack/powder ratio as mandatory. Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities — along with other § 3553(a) factors — when imposing sentences. See Gall, ante, ___ U.S., at ___, n. 6, ___, 128 S. Ct. 586, at 596-597, n. 6, 599, 2007 WL 4292116. Under this instruction, district courts must take account of sentencing practices in other courts and the "cliffs" resulting from the statutory mandatory minimum sentences. To reach an appropriate sentence, these disparities must be weighed against the other § 3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself. IV While rendering the Sentencing Guidelines advisory, United States v. Booker, 543 U.S. 220, 245, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we have nevertheless preserved a key role for the Sentencing Commission. As explained in Rita and Gall, district courts must treat the Guidelines as the "starting point and the initial benchmark," Gall v. United States, ante, ___ U.S., at ___, 128 S. Ct. 586, 2007 WL 4292116. Congress established the Commission to formulate and constantly refine national sentencing standards. See Rita v. United States, 551 U.S. ___, ___ - ___, 127 S. Ct. 2456, 2464-2465, 168 L. Ed. 2d 203 (2007). Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to "base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise." United States v. Pruitt, 502 F.3d 1154, 1171 (C.A.10 2007) (McConnell, J., concurring); see supra, at 1171. We have accordingly recognized that, in the ordinary case, the Commission's recommendation of a sentencing range will "reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives." Rita, 551 U.S., at ___, 127 S.Ct., at 2465. The sentencing judge, on the other hand, has "greater familiarity with ... the individual case and the individual defendant before him than the Commission or the appeals court." Id., at ___, 127 S.Ct., at 2469. He is therefore "in a superior position to find facts and judge their import under § 3353(a)" in each particular case. Gall, ante, ___ U.S., at ___, 128 S. Ct. 586, 2007 WL 4292116 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court's decision to vary from the advisory Guidelines may *575 attract greatest respect when the sentencing judge finds a particular case "outside the `heartland' to which the Commission intends individual Guidelines to apply." Rita, 551 U.S., at ___, 127 S.Ct., at 2465. On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range "fails properly to reflect § 3553(a) considerations" even in a mine-run case. Ibid. Cf. Tr. of Oral Arg. in Gall v. United States, O.T.2007, No. 06-7949, pp. 38-39. The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission's exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of "empirical data and national experience." See Pruitt, 502 F.3d, at 1171 (McConnell, J., concurring). Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses "greater than necessary" in light of the purposes of sentencing set forth in § 3553(a). See supra, at 568. Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence "greater than necessary" to achieve § 3553(a)'s purposes, even in a mine-run case. V Taking account of the foregoing discussion in appraising the District Court's disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant § 3553(a) factors. First, the court considered "the nature and circumstances" of the crime, see 18 U.S.C. § 3553(a)(1), which was an unremarkable drug-trafficking offense. App. 72-73 ("[T]his defendant and another defendant were caught sitting in a car with some crack cocaine and powder by two police officers — that's the sum and substance of it — [and they also had] a firearm."). Second, the court considered Kimbrough's "history and characteristics." § 3553(a)(1). The court noted that Kimbrough had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment. Furthermore, the court alluded to the Sentencing Commission's reports criticizing the 100 — to — 1 ratio, cf. § 3553(a)(5) (Supp. V), noting that the Commission "recognizes that crack cocaine has not caused the damage that the Justice Department alleges it has." App. 72. Comparing the Guidelines range to the range that would have applied if Kimbrough had possessed an equal amount of powder, the court suggested that the 100 — to — 1 ratio itself created an unwarranted disparity within the meaning of § 3553(a). Finally, the court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with § 3553(a)'s overarching instruction to "impose a sentence sufficient, but not greater than necessary" to accomplish the sentencing goals advanced in § 3553(a)(2). See supra, at 570. Concluding that "the crack cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this case," App. 72, the District Court thus rested its sentence on the appropriate *576 considerations and "committed no procedural error," Gall v. United States, ante, ___ U.S., at ___, 128 S. Ct. 586, at 600, 2007 WL 4292116. The ultimate question in Kimbrough's case is "whether the sentence was reasonable — i.e., whether the District Judge abused his discretion in determining that the § 3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range." Ibid. The sentence the District Court imposed on Kimbrough was 4.5 years below the bottom of the Guidelines range. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with § 3553(a). See Part II-B, supra. Indeed, aside from its claim that the 100 — to — 1 ratio is mandatory, the Government did not attack the District Court's downward variance as unsupported by § 3553(a). Giving due respect to the District Court's reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion. See Gall, ante, at ___ - ___, 128 S. Ct. 586, at 601-602; Rita v. United States, 551 U.S. ___, ___, 127 S. Ct. 2456, 2469-2470, 168 L. Ed. 2d 203 (2007). * * * For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This Court's remedial opinion in United instructed district courts to read the United States Sentencing Guidelines as "effectively advisory," In accord with (a), the Guidelines, formerly mandatory, now serve as one factor among several courts must consider in determining an appropriate sentence. Booker further instructed that "reasonableness" is the standard controlling appellate review of the sentences district courts impose. Under the statute criminalizing the manufacture and distribution of crack cocaine, and the relevant Guidelines prescription, 2D1.1, a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. The question here presented is whether, as the Court of Appeals held in this case, "a sentence outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses." We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only, and that the Court of Appeals erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration. The judge may determine, however, that, in the particular case, a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing. (a) (2000 ed. and Supp. V). In making that determination, the judge may consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses. I In September 2004, petitioner Derrick Kimbrough was indicted in the United States District Court for the Eastern District of Virginia and charged with four offenses: conspiracy to distribute crack and powder cocaine; possession with intent to distribute more than 50 grams of crack cocaine; possession with intent to distribute powder cocaine; and possession of a firearm in furtherance of a drugtrafficking offense. Kimbrough pleaded guilty to all four charges. Under the relevant statutes, Kimbrough's plea subjected him to an aggregate sentence of 15 years to life in prison: 10 years to life for the three drug offenses, plus a consecutive term of 5 years to life for the firearm offense.[1] In order to determine *565 the appropriate sentence within this statutory range, the District Court first calculated Kimbrough's sentence under the advisory Sentencing Guidelines.[2] Kimbrough's guilty plea acknowledged that he was accountable for 56 grams of crack cocaine and 92.1 grams of powder cocaine. This quantity of drugs yielded a base offense level of 32 for the three drug charges. See United States Sentencing Commission, Guidelines Manual 2D1.1(c) (Nov.2004) (USSG). Finding that Kimbrough, by asserting sole culpability for the crime, had testified falsely at his codefendant's trial, the District Court increased his offense level to 34. See 3C1.1. In accord with the presentence report, the court determined that Kimbrough's criminal history category was II. An offense level of 34 and a criminal history category of II yielded a Guidelines range of 168 to 210 months for the three drug charges. See ch. 5, pt. A, Sentencing Table. The Guidelines sentence for the firearm offense was the statutory minimum, 60 months. See USSG 2K2.4(b). Kimbrough's final advisory Guidelines range was thus 228 to 270 months, or 19 to 22.5 years. A sentence in this range, in the District Court's judgment, would have been "greater than necessary" to accomplish the purposes of sentencing set forth in (a). App. 72. As required by 3553(a), the court took into account the "nature and circumstances" of the offense and Kimbrough's "history and characteristics." The court also commented that the case exemplified the "disproportionate and unjust effect that crack cocaine guidelines have in sentencing." In this regard, the court contrasted Kimbrough's Guidelines range of 228 to 270 months with the range that would have applied had he been accountable for an equivalent amount of powder cocaine: 97 to 106 months, inclusive of the 5-year mandatory minimum for the firearm charge, see USSG 2D1.1(c); ch. 5, pt. A, Sentencing Table. Concluding that the statutory minimum sentence was "clearly long enough" to accomplish the objectives listed in 3553(a), the court sentenced Kimbrough to 15 years, or 180 months, in prison plus 5 years of supervised release. App. 74-75.[3] In an unpublished per curiam opinion, the Fourth Circuit vacated the sentence. Under Circuit precedent, the Court of Appeals observed, a sentence "outside the guidelines range is per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powder cocaine offenses." 174 Fed.Appx., at ). We granted certiorari, 551 U.S. to determine whether the crack/powder disparity adopted in the United States Sentencing *566 Guidelines has been rendered "advisory" by our decision in Booker.[4] II We begin with some background on the different treatment of crack and powder cocaine under the federal sentencing laws. Crack and powder cocaine are two forms of the same drug. Powder cocaine, or cocaine hydrochloride, is generally inhaled through the nose; it may also be mixed with water and injected. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 5, 12 (Feb.1995), available at http://www.ussc.gov/crack/exec.htm (hereinafter 1995 Report). (All Internet materials as visited Dec. 7, and included in Clerk of Court's case file.) Crack cocaine, a type of cocaine base, is formed by dissolving powder cocaine and baking soda in boiling water. The resulting solid is divided into single-dose "rocks" that users smoke. The active ingredient in powder and crack cocaine is the same. The two forms of the drug also have the same physiological and psychotropic effects, but smoking crack cocaine allows the body to absorb the drug much faster than inhaling powder cocaine, and thus produces a shorter, more intense high.[5] Although chemically similar, crack and powder cocaine are handled very differently for sentencing purposes. The 100 — to — 1 ratio yields sentences for crack offenses three to six times longer than those for powder offenses involving equal amounts of drugs. See United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy iv (May 2002), available at http://www.ussc.gov/r_congress/02crack/ 2002crackrpt.pdf (hereinafter 2002 Report).[6] This disparity means that a major supplier of powder cocaine may receive a shorter sentence than a low-level dealer who buys powder from the supplier but then converts it to crack. See 1995 Report 193-194. A The crack/powder disparity originated in the Anti-Drug Abuse Act of 1986 (1986 Act), The 1986 Act created a two-tiered scheme of five- and ten-year mandatory minimum sentences for drug manufacturing and distribution offenses. Congress sought "to link the ten-year mandatory minimum trafficking prison term to major drug dealers and to link the five-year minimum term to serious traffickers." 1995 Report 119. The 1986 Act uses the weight of the drugs involved in *567 the offense as the sole proxy to identify "major" and "serious" dealers. For example, any defendant responsible for 100 grams of heroin is subject to the five-year mandatory minimum, see (b)(1)(B)(i) (2000 ed. and Supp V), and any defendant responsible for 1,000 grams of heroin is subject to the ten-year mandatory minimum, see 841(b)(1)(A)(i). Crack cocaine was a relatively new drug when the 1986 Act was signed into law, but it was already a matter of great public concern: "Drug abuse in general, and crack cocaine in particular, had become in public opinion and in members' minds a problem of overwhelming dimensions." 1995 Report 121. Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers' drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack's potency and low cost were making it increasingly popular. See 2002 Report 90. Based on these assumptions, the 1986 Act adopted a "100 — to — 1 ratio" that treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine. The Act's five-year mandatory minimum applies to any defendant accountable for 5 grams of crack or 500 grams of powder, (b)(1)(B)(ii), (iii); its ten-year mandatory minimum applies to any defendant accountable for 50 grams of crack or 5,000 grams of powder, 841(b)(1)(A)(ii), (iii). While Congress was considering adoption of the 1986 Act, the Sentencing Commission was engaged in formulating the Sentencing Guidelines.[7] In the main, the Commission developed Guidelines sentences using an empirical approach based on data about past sentencing practices, including 10,000 presentence investigation reports. See USSG 1A.1, intro. comment., pt. A, ¶ 3. The Commission "modif[ied] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like." The Commission did not use this empirical approach in developing the Guidelines sentences for drug-trafficking offenses. Instead, it employed the 1986 Act's weightdriven scheme. The Guidelines use a drug quantity table based on drug type and weight to set base offense levels for drug trafficking offenses. See USSG 2D1.1(c). In setting offense levels for crack and powder cocaine, the Commission, in line with the 1986 Act, adopted the 100 — to — 1 ratio. The statute itself specifies only two quantities of each drug, but the Guidelines "go further and set sentences for the full range of possible drug quantities using the same 100 — to — 1 quantity ratio." 1995 Report 1. The Guidelines' drug quantity table sets base offense levels ranging from 12, for offenses involving less than 250 milligrams of crack (or 25 grams of powder), to 38, for offenses involving more than 1.5 kilograms of crack (or 150 kilograms of powder). USSG 2D1.1(c).[8] *568 B Although the Commission immediately used the 100 — to — 1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. Based on additional research and experience with the 100 — to — 1 ratio, the Commission concluded that the disparity "fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act." 2002 Report 91. In a series of reports, the Commission identified three problems with the crack/powder disparity. First, the Commission reported, the 100 — to — 1 ratio rested on assumptions about "the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support." ; see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 available at http://www.ussc.gov/r_congress/ cocaine.pdf (hereinafter Report) (ratio Congress embedded in the statute far "overstate[s]" both "the relative harmfulness" of crack cocaine, and the "seriousness of most crack cocaine offenses"). For example, the Commission found that crack is associated with "significantly less trafficking-related violence than previously assumed." 2002 Report 100. It also observed that "the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure." 4. The Commission furthermore noted that "the epidemic of crack cocaine use by youth never materialized to the extent feared." 6. Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act's goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. See 1995 Report 66-67. But the 100 — to — 1 ratio can lead to the "anomalous" result that "retail crack dealers get longer sentences than the wholesale drug distributors who supply them the powder cocaine from which their crack is produced." Finally, the Commission stated that the crack/powder sentencing differential "fosters disrespect for and lack of confidence in the criminal justice system" because of a "widely-held perception" that it "promotes unwarranted disparity based on race." 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100 — to — 1 ratio are imposed "primarily upon black offenders." Despite these observations, the Commission's most recent reports do not urge identical treatment of crack and powder cocaine. In the Commission's view, "some differential in the quantity-based penalties" for the two drugs is warranted, because crack is more addictive than powder, crack offenses are more likely to involve weapons or bodily injury, and crack distribution is associated with higher levels of crime, see 3-94, 101-102. But the 100 — to — 1 crack/powder ratio, the Commission concluded, significantly overstates the differences between the two forms of the drug. Accordingly, the Commission recommended that the ratio be "substantially" reduced. at viii. *569 C The Commission has several times sought to achieve a reduction in the crack/powder ratio. In 1995, it proposed amendments to the Guidelines that would have replaced the 100 — to — 1 ratio with a 1 — to — 1 ratio. Complementing that change, the Commission would have installed special enhancements for trafficking offenses involving weapons or bodily injury. See Amendments to the Sentencing Guidelines for United States Courts, 60 Fed.Reg. 25075-25077 (1995). Congress, acting pursuant to 28 U.S.C. 994(p),[9] rejected the amendments. See Pub.L. 104-38, 1, Simultaneously, however, Congress directed the Commission to "propose revision of the drug quantity ratio of crack cocaine to powder cocaine under the relevant statutes and guidelines." 2(a)(2), In response to this directive, the Commission issued reports in 1997 and 2002 recommending that Congress change the 100 — to — 1 ratio prescribed in the 1986 Act. The 1997 Report proposed a 5 — to — 1 ratio. See United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 2 (Apr. 1997), http://www.ussc.gov/r_congress/newcrack.pdf. The 2002 Report recommended lowering the ratio "at least" to 20 to 1. 2002 Report viii. Neither proposal prompted congressional action. The Commission's most recent report, issued in again urged Congress to amend the 1986 Act to reduce the 100 — to — 1 ratio. This time, however, the Commission did not simply await congressional action. Instead, the Commission adopted an ameliorating change in the Guidelines. See Report 9. The alteration, which became effective on November 1, reduces the base offense level associated with each quantity of crack by two levels. See Amendments to the Sentencing Guidelines for United States Courts, -28572[10] This modest amendment yields sentences for crack offenses between two and five times longer than sentences for equal amounts of powder. See ibid.[11] Describing the amendment as "only a partial remedy" for the problems generated by the crack/powder disparity, the Commission noted that "[a]ny comprehensive solution requires appropriate legislative action by Congress." Report 10. III With this history of the crack/powder sentencing ratio in mind, we next consider the status of the Guidelines tied to the ratio after our decision in United In Booker, the Court held that the mandatory Sentencing Guidelines *570 system violated the Sixth Amendment. See The Booker remedial opinion determined that the appropriate cure was to sever and excise the provision of the statute that rendered the Guidelines mandatory, (b)(1) (2000 ed., Supp. IV).[12] This modification of the federal sentencing statute, we explained, "makes the Guidelines effectively advisory." 543 U.S., The statute, as modified by Booker, contains an overarching provision instructing district courts to "impose a sentence sufficient, but not greater than necessary" to accomplish the goals of sentencing, including "to reflect the seriousness of the offense," "to promote respect for the law," "to provide just punishment for the offense," "to afford adequate deterrence to criminal conduct," and "to protect the public from further crimes of the defendant." (a) (2000 ed. and Supp. V). The statute further provides that, in determining the appropriate sentence, the court should consider a number of factors, including "the nature and circumstances of the offense," "the history and characteristics of the defendant," "the sentencing range established" by the Guidelines, "any pertinent policy statement" issued by the Sentencing Commission pursuant to its statutory authority, and "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." In sum, while the statute still requires a court to give respectful consideration to the Guidelines, see WL 4292116, Booker "permits the court to tailor the sentence in light of other statutory concerns as well," 543 U.S., -246, The Government acknowledges that the Guidelines "are now advisory" and that, as a general matter, "courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines." Brief for United States 16; cf. (a district court may consider arguments that "the Guidelines sentence itself fails properly to reflect 3553(a) considerations"). But the Government contends that the Guidelines adopting the 100 — to — 1 ratio are an exception to the "general freedom that sentencing courts have to apply the [ 3553(a)] factors." Brief for United States 16. That is so, according to the Government, because the ratio is a "specific policy determinatio[n] that Congress has directed sentencing courts to observe." The Government offers three arguments in support of this position. We consider each in turn. A As its first and most heavily pressed argument, the Government urges that the 1986 Act itself prohibits the Sentencing Commission and sentencing courts from disagreeing with the 100 — to — 1 ratio.[13] The Government acknowledges that *571 the "Congress did not expressly direct the Sentencing Commission to incorporate the 100:1 ratio in the Guidelines." Brief for United States 33 (brackets and internal quotation marks omitted). Nevertheless, it asserts that the Act "[i]mplicit[ly]" requires the Commission and sentencing courts to apply the 100 — to — 1 ratio. Any deviation, the Government urges, would be "logically incoherent" when combined with mandatory minimum sentences based on the 100 — to — 1 ratio. This argument encounters a formidable obstacle: It lacks grounding in the text of the 1986 Act. The statute, by its terms, mandates only maximum and minimum sentences: A person convicted of possession with intent to distribute 5 grams or more of crack cocaine must be sentenced to a minimum of 5 years and the maximum term is 40 years. A person with 50 grams or more of crack cocaine must be sentenced to a minimum of 10 years and the maximum term is life. The statute says nothing about the appropriate sentences within these brackets, and we decline to read any implicit directive into that congressional silence. See Drawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms. For example, Congress has specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders "at or near" the statutory maximum. 28 U.S.C. 994(h). See also 994(i) ("The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment" for specified categories of offenders.). Our cautious reading of the 1986 Act draws force from That case involved different methods of calculating lysergic acid diethylamide (LSD) weights, one applicable in determining statutory minimum sentences, the other controlling the calculation of Guidelines ranges. The 1986 Act sets mandatory minimum sentences based on the weight of "a mixture or substance containing a detectable amount" of LSD. (b)(1)(A)(v), (B)(v). Prior to we had interpreted that language to include the weight of the carrier medium (usually blotter paper) on which LSD is absorbed even though the carrier is usually far heavier than the LSD itself. See Until 1993, the Sentencing Commission had interpreted the relevant Guidelines in the same way. That year, however, the Commission changed its approach and "instructed courts to give each dose of LSD on a carrier medium a constructive or presumed weight of 0.4 milligrams." (citing USSG 2D1.1(c), n. (H) (Nov. 1995)). The Commission's change significantly lowered the Guidelines range applicable to most LSD offenses, but defendants remained subject to higher statutory minimum sentences based on the combined weight of the pure drug and its carrier medium. The defendant in argued that the revised Guidelines and the statute should be interpreted consistently and that the "presumptive-weight method of the Guidelines should also control the mandatory minimum calculation." We rejected that argument, emphasizing that the Commission had not purported to interpret the statute and could not in any event overrule our *572 decision in Chapman. See -295, If the Government's current position were correct, then the Guidelines involved in would be in serious jeopardy. We have just recounted the reasons alleged to justify reading into the 1986 Act an implicit command to the Commission and sentencing courts to apply the 100 — to — 1 ratio to all quantities of crack cocaine. Those same reasons could be urged in support of an argument that the 1986 Act requires the Commission to include the full weight of the carrier medium in calculating the weight of LSD for Guidelines purposes. Yet our opinion in never questioned the validity of the altered Guidelines. To the contrary, we stated: "Entrusted within its sphere to make policy judgments, the Commission may abandon its old methods in favor of what it has deemed a more desirable `approach' to calculating LSD quantities."[14] If the 1986 Act does not require the Commission to adhere to the Act's method for determining LSD weights, it does not require the Commission — or, after Booker, sentencing courts — to adhere to the 100 — to — 1 ratio for crack cocaine quantities other than those that trigger the statutory mandatory minimum sentences. B In addition to the 1986 Act, the Government relies on Congress' disapproval of the Guidelines amendment that the Sentencing Commission proposed in 1995. Congress "not only disapproved of the 1:1 ratio," the Government urges; it also made clear "that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to do so in a manner that respects the 100:1 ratio." Brief for United States 35. It is true that Congress rejected the Commission's 1995 proposal to place a 1 — to — 1 ratio in the Guidelines, and that Congress also expressed the view that "the sentence imposed for trafficking in a quantity of crack cocaine should generally exceed the sentence imposed for trafficking in a like quantity of powder cocaine." Pub.L. 104-38, 2(a)(1)(A), But nothing in Congress' 1995 reaction to the Commission-proposed 1— to — 1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress' 1995 action required the Commission to recommend a "revision of the drug quantity ratio of crack cocaine to powder cocaine." 2(a)(2), The Government emphasizes that Congress required the Commission to propose changes to the 100 — to — 1 ratio in both the 1986 Act and the Guidelines. This requirement, the Government contends, implicitly foreclosed any deviation from the 100 — to — 1 ratio in the Guidelines (or by *573 sentencing courts) in the absence of a corresponding change in the statute. See Brief for United States 35-36. But it does not follow as the night follows the day that, by calling for recommendations to change the statute, Congress meant to bar any Guidelines alteration in advance of congressional action. The more likely reading is that Congress sought proposals to amend both the statute and the Guidelines because the Commission's criticisms of the 100 — to — 1 ratio, see Part concerned the exorbitance of the crack/powder disparity in both contexts. Moreover, as a result of the amendment, see the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1. See Amendments to the Sentencing Guidelines for United States Courts, 72 Fed.Reg. 28571-28572. Adopting the Government's analysis, the amended Guidelines would conflict with Congress' 1995 action, and with the 1986 Act, because the current Guidelines ratios deviate from the 100 — to — 1 statutory ratio. Congress, however, did not disapprove or modify the Commission-initiated amendment. Ordinarily, we resist reading congressional intent into congressional inaction. See Bob Jones But in this case, Congress failed to act on a proposed amendment to the Guidelines in a high-profile area in which it had previously exercised its disapproval authority under 28 U.S.C. 994(p). If nothing else, this tacit acceptance of the amendment undermines the Government's position, which is itself based on implications drawn from congressional silence. C Finally, the Government argues that if district courts are free to deviate from the Guidelines based on disagreements with the crack/powder ratio, unwarranted disparities of two kinds will ensue. See (a)(6) First, because sentencing courts remain bound by the mandatory minimum sentences prescribed in the 1986 Act, deviations from the 100 — to — 1 ratio could result in sentencing "cliffs" around quantities that trigger the mandatory minimums. Brief for United States 33 (internal quotation marks omitted). For example, a district court could grant a sizable downward variance to a defendant convicted of distributing 49 grams of crack but would be required by the statutory minimum to impose a much higher sentence on a defendant responsible for only 1 additional gram. Second, the Government maintains that, if district courts are permitted to vary from the Guidelines based on their disagreement with the crack/powder disparity, "defendants with identical real conduct will receive markedly different sentences, depending on nothing more than the particular judge drawn for sentencing." Neither of these arguments persuades us to hold the crack/powder ratio untouchable by sentencing courts. As to the first, the LSD Guidelines we approved in create a similar risk of sentencing "cliffs." An offender who possesses LSD on a carrier medium weighing ten grams is subject to the ten-year mandatory minimum, see (b)(1)(A)(v), but an offender whose carrier medium weighs slightly less may receive a considerably lower sentence based on the Guidelines' presumptive-weight methodology. Concerning the second disparity, it is unquestioned that uniformity remains an important goal of sentencing. As we explained in Booker, however, advisory Guidelines combined with appellate review for reasonableness *574 and ongoing revision of the Guidelines in response to sentencing practices will help to "avoid excessive sentencing disparities." These measures will not eliminate variations between district courts, but our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted. See ("We cannot and do not claim that use of a `reasonableness' standard will provide the uniformity that Congress originally sought to secure [through mandatory Guidelines]."). And as to crack cocaine sentences in particular, we note a congressional control on disparities: possible variations among district courts are constrained by the mandatory minimums Congress prescribed in the 1986 Act.[15] Moreover, to the extent that the Government correctly identifies risks of "unwarranted sentence disparities" within the meaning of 18 U.S.C. 3353(a)(6), the proper solution is not to treat the crack/powder ratio as mandatory. Section 3553(a)(6) directs district courts to consider the need to avoid unwarranted disparities — along with other 3553(a) factors — when imposing sentences. See Gall, ante, U.S., at n. 6, WL 4292116. Under this instruction, district courts must take account of sentencing practices in other courts and the "cliffs" resulting from the statutory mandatory minimum sentences. To reach an appropriate sentence, these disparities must be weighed against the other 3553(a) factors and any unwarranted disparity created by the crack/powder ratio itself. IV While rendering the Sentencing Guidelines advisory, United we have nevertheless preserved a key role for the Sentencing Commission. As explained in Rita and Gall, district courts must treat the Guidelines as the "starting point and the initial benchmark," WL 4292116. Congress established the Commission to formulate and constantly refine national sentencing standards. See - -, Carrying out its charge, the Commission fills an important institutional role: It has the capacity courts lack to "base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise." United ; see at We have accordingly recognized that, in the ordinary case, the Commission's recommendation of a sentencing range will "reflect a rough approximation of sentences that might achieve 3553(a)'s objectives." Rita, 551 U.S., at 127 S.Ct., at The sentencing judge, on the other hand, has "greater familiarity with the individual case and the individual defendant before him than the Commission or the appeals court." at He is therefore "in a superior position to find facts and judge their import under 3353(a)" in each particular case. Gall, ante, U.S., at WL 4292116 (internal quotation marks omitted). In light of these discrete institutional strengths, a district court's decision to vary from the advisory Guidelines may *575 attract greatest respect when the sentencing judge finds a particular case "outside the `heartland' to which the Commission intends individual Guidelines to apply." Rita, 551 U.S., at 127 S.Ct., at On the other hand, while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range "fails properly to reflect 3553(a) considerations" even in a mine-run case. Cf. Tr. of Oral Arg. in Gall v. United States, O.T., No. 06-7949, pp. 38-39. The crack cocaine Guidelines, however, present no occasion for elaborative discussion of this matter because those Guidelines do not exemplify the Commission's exercise of its characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses, as we earlier noted, the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not take account of "empirical data and national experience." See 502 F.3d, at Indeed, the Commission itself has reported that the crack/powder disparity produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses "greater than necessary" in light of the purposes of sentencing set forth in 3553(a). See Given all this, it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence "greater than necessary" to achieve 3553(a)'s purposes, even in a mine-run case. V Taking account of the foregoing discussion in appraising the District Court's disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection. The District Court began by properly calculating and considering the advisory Guidelines range. It then addressed the relevant 3553(a) factors. First, the court considered "the nature and circumstances" of the crime, see (a)(1), which was an unremarkable drug-trafficking offense. App. 72-73 ("[T]his defendant and another defendant were caught sitting in a car with some crack cocaine and powder by two police officers — that's the sum and substance of it — [and they also had] a firearm."). Second, the court considered Kimbrough's "history and characteristics." 3553(a)(1). The court noted that Kimbrough had no prior felony convictions, that he had served in combat during Operation Desert Storm and received an honorable discharge from the Marine Corps, and that he had a steady history of employment. Furthermore, the court alluded to the Sentencing Commission's reports criticizing the 100 — to — 1 ratio, cf. 3553(a)(5) (Supp. V), noting that the Commission "recognizes that crack cocaine has not caused the damage that the Justice Department alleges it has." App. 72. Comparing the Guidelines range to the range that would have applied if Kimbrough had possessed an equal amount of powder, the court suggested that the 100 — to — 1 ratio itself created an unwarranted disparity within the meaning of 3553(a). Finally, the court did not purport to establish a ratio of its own. Rather, it appropriately framed its final determination in line with 3553(a)'s overarching instruction to "impose a sentence sufficient, but not greater than necessary" to accomplish the sentencing goals advanced in 3553(a)(2). See Concluding that "the crack cocaine guidelines [drove] the offense level to a point higher than is necessary to do justice in this case," App. 72, the District Court thus rested its sentence on the appropriate *576 considerations and "committed no procedural error," at WL 4292116. The ultimate question in Kimbrough's case is "whether the sentence was reasonable — i.e., whether the District Judge abused his discretion in determining that the 3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range." The sentence the District Court imposed on Kimbrough was 4.5 years below the bottom of the Guidelines range. But in determining that 15 years was the appropriate prison term, the District Court properly homed in on the particular circumstances of Kimbrough's case and accorded weight to the Sentencing Commission's consistent and emphatic position that the crack/powder disparity is at odds with 3553(a). See Part Indeed, aside from its claim that the 100 — to — 1 ratio is mandatory, the Government did not attack the District Court's downward variance as unsupported by 3553(a). Giving due respect to the District Court's reasoned appraisal, a reviewing court could not rationally conclude that the 4.5-year sentence reduction Kimbrough received qualified as an abuse of discretion. See Gall, ante, at - ; * * * For the reasons stated, the judgment of the United States Court of Appeals for the Fourth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Scalia

concurring

Kimbrough v. United States

2007-12-10

https://www.courtlistener.com/opinion/145841/kimbrough-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145841/

2007-007

The Court says that "closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range 'fails properly to reflect § 3553(a) considerations' even in a mine-run case," but that this case "present[s] no occasion for elaborative discussion of this matter." Ante, at ___ (quoting Rita v. United States, 551 U.S. ___, ___, 127 S. Ct. 2456, 2465, 168 L. Ed. 2d 203 (2007)). I join the opinion only because I do not take this to be an unannounced abandonment of the following clear statements in our recent opinions: "[Our remedial opinion] requires a sentencing court to consider Guidelines ranges, ... but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a). . . . . "[W]ithout this provision — namely the provision that makes `the relevant sentencing rules ... mandatory and impose[s] binding requirements on all sentencing judges' — the statute falls outside the scope of requirement. . . . . "The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." United States v. Booker, 543 U.S. 220, 245-246, 259, 264, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). "Under the system described in Justice BREYER's opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the Guidelines. But they would be obliged to `take account of' that range along with the sentencing goals Congress enumerated in the SRA at 18 U.S.C. § 3553(a)." Cunningham v. California, 549 U.S. ___, ___, 127 S. Ct. 856, 867, 166 L. Ed. 2d 856 (2007). *577 "[The sentencing judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply, USSG § 5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect § 3553(a) considerations, or perhaps because the case warrants a different sentence regardless. See Rule 32(f). . . . . "A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range." Rita, supra, at ___, 127 S.Ct., at 2465. These statements mean that the district court is free to make its own reasonable application of the § 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines. If there is any thumb on the scales; if the Guidelines must be followed even where the district court's application of the § 3553(a) factors is entirely reasonable; then the "advisory" Guidelines would, over a large expanse of their application, entitle the defendant to a lesser sentence but for the presence of certain additional facts found by judge rather than jury. This, as we said in Booker, would violate the Sixth Amendment.

The Court says that "closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range 'fails properly to reflect 3553(a) considerations' even in a mine-run case," but that this case "present[s] no occasion for elaborative discussion of this matter." Ante, at ). I join the opinion only because I do not take this to be an unannounced abandonment of the following clear statements in our recent opinions: "[Our remedial opinion] requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3553(a). "[W]ithout this provision — namely the provision that makes `the relevant sentencing rules mandatory and impose[s] binding requirements on all sentencing judges' — the statute falls outside the scope of requirement. "The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." United "Under the system described in Justice BREYER's opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the Guidelines. But they would be obliged to `take account of' that range along with the sentencing goals Congress enumerated in the SRA at 18 U.S.C. 3553(a)." *577 "[The sentencing judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply, USSG 5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect 3553(a) considerations, or perhaps because the case warrants a different sentence regardless. See Rule 32(f). "A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range." Rita, at 127 S.Ct., at These statements mean that the district court is free to make its own reasonable application of the 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines. If there is any thumb on the scales; if the Guidelines must be followed even where the district court's application of the 3553(a) factors is entirely reasonable; then the "advisory" Guidelines would, over a large expanse of their application, entitle the defendant to a lesser sentence but for the presence of certain additional facts found by judge rather than jury. This, as we said in Booker, would violate the Sixth Amendment.

Justice Thomas

dissenting

Kimbrough v. United States

2007-12-10

https://www.courtlistener.com/opinion/145841/kimbrough-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145841/

2007-007

I continue to disagree with the remedy fashioned in United States v. Booker, 543 U.S. 220, 258-265, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). The Court's post-Booker sentencing cases illustrate why the remedial majority in Booker was mistaken to craft a remedy far broader than necessary to correct constitutional error. The Court is now confronted with a host of questions about how to administer a sentencing scheme that has no basis in the statute. Because the Court's decisions in this area are necessarily grounded in policy considerations rather than law, I respectfully dissent. In Booker, the Court held that the Federal Sentencing Guidelines violate the Sixth Amendment insofar as they permit a judge to make findings that raise a sentence beyond the level justified by the "`facts reflected in the jury verdict or admitted by the defendant.'" Id., at 232, 125 S. Ct. 738 (quoting Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) (emphasis deleted)). In my view, this violation was more suitably remedied by requiring any such facts to be submitted to the jury. Booker, 543 U.S., at 323-325, 125 S. Ct. 738 (THOMAS, J., dissenting in part). That approach would have been consistent with our longstanding presumption of the severability of unconstitutional applications of statutory provisions. Id., at 322-323, 125 S. Ct. 738 (THOMAS, J., dissenting in part). And it would have achieved compliance with the Sixth Amendment while doing the least amount of violence to the mandatory sentencing regime that Congress enacted. Id., at 324-326, 125 S. Ct. 738 (THOMAS, J., dissenting in part). The Court, however, *578 chose a more sweeping remedy. Despite acknowledging that under the mandatory Guidelines not "every sentence gives rise to a Sixth Amendment violation," the Court rendered the Guidelines advisory in their entirety and mandated appellate review of all sentences for "reasonableness." Id., at 268, 125 S. Ct. 738. Because the Court's "solution fail[ed] to tailor the remedy to the wrong," I dissented from the remedial opinion. Id., at 313, 125 S. Ct. 738. As a result of the Court's remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers. Last Term, in Rita v. United States, 551 U.S. ___, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007), the Court held that a Court of Appeals may treat sentences within the properly calculated Guidelines range as presumptively reasonable. Today, in Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 169 L. Ed. 2d 445, 2007 WL 4292116, the Court holds that a Court of Appeals may not require sentences that deviate substantially from the Guidelines range to be justified by extraordinary circumstances. And here the Court holds that sentencing courts are free to reject the Sentencing Guidelines' 100-to-1 crack-to-powder ratio. These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law. Congress did not mandate a reasonableness standard of appellate review — that was a standard the remedial majority in Booker fashioned out of whole cloth. See 543 U.S., at 307-312, 125 S. Ct. 738 (SCALIA, J., dissenting in part). The Court must now give content to that standard, but in so doing it does not and cannot rely on any statutory language or congressional intent. We are asked here to determine whether, under the new advisory Guidelines regime, district courts may impose sentences based in part on their disagreement with a categorical policy judgment reflected in the Guidelines. But the Court's answer to that question necessarily derives from something other than the statutory language or congressional intent because Congress, by making the Guidelines mandatory, quite clearly intended to bind district courts to the Sentencing Commission's categorical policy judgments. See 18 U.S.C. § 3553(b) (2000 ed. and Supp. V) (excised by Booker). By rejecting this statutory approach, the Booker remedial majority has left the Court with no law to apply and forced it to assume the legislative role of devising a new sentencing scheme. Although I joined Justice SCALIA's dissent in Rita accepting the Booker remedial opinion as a matter of "statutory stare decisis," 551 U.S., at ___, 127 S.Ct., at 2475, I am now convinced that there is no principled way to apply the Booker remedy — certainly not one based on the statute. Accordingly, I think it best to apply the statute as written, including 18 U.S.C. § 3553(b), which makes the Guidelines mandatory. Cf. Dickerson v. United States, 530 U.S. 428, 465, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000) (SCALIA, J., dissenting). Applying the statute as written, it is clear that the District Court erred by departing below the mandatory Guidelines range. I would therefore affirm the judgment of the Court of Appeals vacating petitioner's sentence and remanding for resentencing.

I continue to disagree with the remedy fashioned in United The Court's post- sentencing cases illustrate why the remedial majority in was mistaken to craft a remedy far broader than necessary to correct constitutional error. The Court is now confronted with a host of questions about how to administer a sentencing scheme that has no basis in the statute. Because the Court's decisions in this area are necessarily grounded in policy considerations rather than law, I respectfully dissent. In the Court held that the Federal Sentencing Guidelines violate the Sixth Amendment insofar as they permit a judge to make findings that raise a sentence beyond the level justified by the "`facts reflected in the jury verdict or admitted by the defendant.'" ). In my view, this violation was more suitably remedied by requiring any such facts to be submitted to the jury. -325, (THOMAS, J., dissenting in part). That approach would have been consistent with our longstanding presumption of the severability of unconstitutional applications of statutory provisions. (THOMAS, J., dissenting in part). And it would have achieved compliance with the Sixth Amendment while doing the least amount of violence to the mandatory sentencing regime that Congress enacted. (THOMAS, J., dissenting in part). The Court, however, *578 chose a more sweeping remedy. Despite acknowledging that under the mandatory Guidelines not "every sentence gives rise to a Sixth Amendment violation," the Court rendered the Guidelines advisory in their entirety and mandated appellate review of all sentences for "reasonableness." Because the Court's "solution fail[ed] to tailor the remedy to the wrong," I dissented from the remedial opinion. As a result of the Court's remedial approach, we are now called upon to decide a multiplicity of questions that have no discernibly legal answers. Last Term, in the Court held that a Court of Appeals may treat sentences within the properly calculated Guidelines range as presumptively reasonable. Today, in WL 4292116, the Court holds that a Court of Appeals may not require sentences that deviate substantially from the Guidelines range to be justified by extraordinary circumstances. And here the Court holds that sentencing courts are free to reject the Sentencing Guidelines' 100-to-1 crack-to-powder ratio. These outcomes may be perfectly reasonable as a matter of policy, but they have no basis in law. Congress did not mandate a reasonableness standard of appellate review — that was a standard the remedial majority in fashioned out of whole cloth. See -312, (SCALIA, J., dissenting in part). The Court must now give content to that standard, but in so doing it does not and cannot rely on any statutory language or congressional intent. We are asked here to determine whether, under the new advisory Guidelines regime, district courts may impose sentences based in part on their disagreement with a categorical policy judgment reflected in the Guidelines. But the Court's answer to that question necessarily derives from something other than the statutory language or congressional intent because Congress, by making the Guidelines mandatory, quite clearly intended to bind district courts to the Sentencing Commission's categorical policy judgments. See (b) ( ed. and Supp. V) (excised by ). By rejecting this statutory approach, the remedial majority has left the Court with no law to apply and forced it to assume the legislative role of devising a new sentencing scheme. Although I joined Justice SCALIA's dissent in Rita accepting the remedial opinion as a matter of "statutory stare decisis," 551 U.S., at I am now convinced that there is no principled way to apply the remedy — certainly not one based on the statute. Accordingly, I think it best to apply the statute as written, including (b), which makes the Guidelines mandatory. Cf. Applying the statute as written, it is clear that the District Court erred by departing below the mandatory Guidelines range. I would therefore affirm the judgment of the Court of Appeals vacating petitioner's sentence and remanding for resentencing.

Justice Alito

second_dissenting

Kimbrough v. United States

2007-12-10

https://www.courtlistener.com/opinion/145841/kimbrough-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145841/

2007-007

For the reasons explained in my dissent in Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 169 L. Ed. 2d 445, 2007 WL 4292116, I would hold that, under the remedial decision in United States v. Booker, 543 U.S. 220, 258-265, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), a district judge is still *579 required to give significant weight to the policy decisions embodied in the Guidelines. The Booker remedial decision, however, does not permit a court of appeals to treat the Guidelines' policy decisions as binding. I would not draw a distinction between the Guideline at issue here and other Guidelines. Accordingly, I would vacate the decision of the Court of Appeals and remand for reconsideration.

For the reasons explained in my dissent in a district judge is still *579 required to give significant weight to the policy decisions embodied in the Guidelines. The Booker remedial decision, however, does not permit a court of appeals to treat the Guidelines' policy decisions as binding. I would not draw a distinction between the Guideline at issue here and other Guidelines. Accordingly, I would vacate the decision of the Court of Appeals and remand for reconsideration.

Justice Thomas

majority

Florida Dept. of Rev. v. PICCADILLY

2008-06-16

https://www.courtlistener.com/opinion/145791/florida-dept-of-rev-v-piccadilly/

https://www.courtlistener.com/api/rest/v3/clusters/145791/

2007-057

The Bankruptcy Code provides a stamp-tax exemption for any asset transfer "under a plan confirmed under [Chapter 11]" of the Code. 11 U.S.C. § 1146(a) (2000 ed., Supp. V). Respondent Piccadilly Cafeterias, Inc., was granted an exemption for assets transferred after it had filed for bankruptcy but before its Chapter 11 plan *2330 was submitted to, and confirmed by, the Bankruptcy Court. Petitioner, the Florida Department of Revenue, seeks reversal of the decision of the Court of Appeals upholding the exemption for Piccadilly's asset transfer. Because we hold that § 1146(a)'s stamp-tax exemption does not apply to transfers made before a plan is confirmed under Chapter 11, we reverse the judgment below. I Piccadilly was founded in 1944 and was one of the Nation's most successful cafeteria chains until it began experiencing financial difficulties in the last decade. On October 29, 2003, Piccadilly declared bankruptcy under Chapter 11 of the Bankruptcy Code, § 1101 et seq. (2000 ed. and Supp. V), and requested court authorization to sell substantially all its assets outside the ordinary course of business pursuant to § 363(b)(1) (2000 ed., Supp. V). Piccadilly prepared to sell its assets as a going concern and sought an exemption from any stamp taxes on the eventual transfer under § 1146(a) of the Code.[1] The Bankruptcy Court conducted an auction in which the winning bidder agreed to purchase Piccadilly's assets for $80 million. On January 26, 2004, as a precondition to the sale, Piccadilly entered into a global settlement agreement with committees of senior secured noteholders and unsecured creditors. The settlement agreement dictated the priority of distribution of the sale proceeds among Piccadilly's creditors. On February 13, 2004, the Bankruptcy Court approved the proposed sale and settlement agreement. The court also ruled that the transfer of assets was exempt from stamp taxes under § 1146(a). The sale closed on March 16, 2004. Piccadilly filed its initial Chapter 11 plan in the Bankruptcy Court on March 26, 2004, and filed an amended plan on July 31, 2004.[2] The plan provided for distribution of the sale proceeds in a manner consistent with the settlement agreement. Before the Bankruptcy Court confirmed the plan, Florida filed an objection, seeking a declaration that the $39,200 in stamp taxes it had assessed on certain of Piccadilly's transferred assets fell outside § 1146(a)'s exemption because the transfer had not been "under a plan confirmed" under Chapter 11. On October 21, 2004, the bankruptcy court confirmed the plan. On cross-motions for summary judgment on the stamp-tax issue, the Bankruptcy Court granted summary judgment in favor *2331 of Piccadilly, reasoning that the sale of substantially all Piccadilly's assets was a transfer "`under'" its confirmed plan because the sale was necessary to consummate the plan. App. D to Pet. for Cert. 40a-41a. The District Court upheld the decision on the ground that § 1146(a), in certain circumstances, affords a stamp-tax exemption even when a transfer occurs prior to confirmation. In re Piccadilly Cafeterias, Inc., 379 B.R. 215, 226 (S.D.Fla.2006). The Court of Appeals for the Eleventh Circuit affirmed, holding that "§ 1146[(a)]'s tax exemption may apply to those pre-confirmation transfers that are necessary to the consummation of a confirmed plan of reorganization, which, at the very least, requires that there be some nexus between the pre-confirmation transfer and the confirmed plan." In re Piccadilly Cafeterias, Inc., 484 F.3d 1299, 1304 (2007) (per curiam). Finding the statutory text ambiguous, the Court of Appeals concluded that § 1146(a) should be interpreted consistent with "the principle that a remedial statute such as the Bankruptcy Code should be liberally construed." Ibid. The court further noted that its interpretation of § 1146(a) better accounted for "the practical realities of Chapter 11 reorganization cases" because a debtor may need to transfer assets to induce relevant parties to endorse the proposed confirmation of a plan. Ibid. The Court of Appeals acknowledged that its holding conflicted with the approach taken by the Courts of Appeals for the Third and Fourth Circuits, id., at 1302, which have held that § 1146(a) "does not apply to ... transactions that occur prior to the confirmation of a plan under Chapter 11 of the Bankruptcy Code." In re Hechinger Inv. Co. of Del., 335 F.3d 243, 246 (C.A.3 2003); see also In re NVR, LP, 189 F.3d 442, 458 (C.A.4 1999) (holding that § 1146(a) "appl[ies] only to transfers under the Plan occurring after the date of confirmation"). We granted certiorari, 552 U.S. ___, 128 S. Ct. 741, 169 L. Ed. 2d 579 (2007), to resolve the conflict among the Courts of Appeals as to whether § 1146(a) applies to preconfirmation transfers. II Section 1146(a), entitled "Special tax provisions," provides: "The issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax." (Emphasis added.) Florida asserts that § 1146(a) applies only to postconfirmation sales; Piccadilly contends that it extends to preconfirmation transfers as long as they are made in accordance with a plan that is eventually confirmed. Florida and Piccadilly base their competing readings of § 1146(a) on the provision's text, on inferences drawn from other Code provisions, and on substantive canons of statutory construction. We consider each of their arguments in turn. A Florida contends that § 1146(a)'s text unambiguously limits stamp-tax exemptions to postconfirmation transfers made under the authority of a confirmed plan. It observes that the word "confirmed" modifies the word "plan" and is a past participle, i.e., "[a] verb form indicating past or completed action or time that is used as a verbal adjective in phrases such as baked beans and finished work." American Heritage Dictionary 1287 (4th ed.2000). Florida maintains that a past participle indicates past or completed action even when it is placed after the noun it modifies, as in "beans baked in the oven," or "work finished after midnight." *2332 Thus, it argues, the phrase "plan confirmed" denotes a "confirmed plan"— meaning one that has been confirmed in the past. Florida further contends that the word "under" in "under a plan confirmed" should be read to mean "with the authorization of" or "inferior or subordinate" to its referent, here the confirmed plan. See Ardestani v. INS, 502 U.S. 129, 135, 112 S. Ct. 515, 116 L. Ed. 2d 496 (1991) (noting that a thing that is "`under'" a statute is most naturally read as being "`subject to'" or "`governed by'" the statute). Florida points out that, in the other two appearances of "under" in § 1146(a), it clearly means "subject to." Invoking the textual canon that "`identical words used in different parts of the same act are intended to have the same meaning,'" Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 159, 113 S. Ct. 2006, 124 L. Ed. 2d 71 (1993), Florida asserts the term must also have its core meaning of "subject to" in the phrase "under a plan confirmed." Florida thus reasons that to be eligible for § 1146(a)'s exemption, a transfer must be subject to a plan that has been confirmed subject to § 1129 (2000 ed. and Supp. V). Echoing the Fourth Circuit's reasoning in NVR, supra, at 457, Florida concludes that a transfer made prior to the date of plan confirmation cannot be subject to, or under the authority of, something that did not exist at the time of the transfer—a confirmed plan. Piccadilly counters that the statutory language does not unambiguously impose a temporal requirement. It contends that "plan confirmed" is not necessarily the equivalent of "confirmed plan," and that had Congress intended the latter, it would have used that language, as it did in a related Code provision. See § 1142(b) (referring to "any instrument required to effect a transfer of property dealt with by a confirmed plan"). Piccadilly also argues that "under" is just as easily read to mean "in accordance with." It observes that the variability of the term "under" is well-documented, noting that the American Heritage Dictionary 1395 (1976) provides 15 definitions, including "[i]n view of," "because of," "by virtue of," as well as "[s]ubject to the restraint ... of." See also Ardestani, supra, at 135, 112 S. Ct. 515 (recognizing that "[t]he word `under' has many dictionary definitions and must draw its meaning from its context"). Although "under" appears several times in § 1146(a), Piccadilly maintains there is no reason why a term of such common usage and variable meaning must have the same meaning each time it is used, even in the same sentence. As an illustration, it points to § 302(a) of the Bankruptcy Code, which states, "The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter." Piccadilly contends that this provision is best read as: "The commencement of a joint case subject to the provisions of a chapter of this title constitutes an order for relief in such chapter." Piccadilly thus concludes that the statutory text—standing alone—is susceptible of more than one interpretation. See Hechinger, supra, at 253 ("[W]e cannot say that the language of [§ 1146(a)] rules out the possibility that `under a plan confirmed' means `in agreement with a plan confirmed'"). While both sides present credible interpretations of § 1146(a), Florida has the better one. To be sure, Congress could have used more precise language— i.e., "under a plan that has been confirmed"—and thus removed all ambiguity. But the two readings of the language that Congress chose are not equally plausible: Of the two, Florida's is clearly the more natural. The interpretation advanced by *2333 Piccadilly and adopted by the Eleventh Circuit—that there must be "some nexus between the pre-confirmation transfer and the confirmed plan" for § 1146(a) to apply, 484 F.3d, at 1304—places greater strain on the statutory text than the simpler construction advanced by Florida and adopted by the Third and Fourth Circuits. Furthermore, Piccadilly's emphasis on the distinction between "plan confirmed" and "confirmed plan" is unavailing because § 1146(a) specifies not only that a tax-exempt transfer be "under a plan," but also that the plan in question be confirmed pursuant to §1129. Congress' placement of "plan confirmed" before "under section 1129" avoids the ambiguity that would have arisen had it used the term "confirmed plan," which could easily be read to mean that the transfer must be "under section 1129" rather than under a plan that was itself confirmed under § 1129. Although we agree with Florida that the more natural reading of § 1146(a) is that the exemption applies only to postconfirmation transfers, ultimately we need not decide whether the statute is unambiguous on its face. Even assuming, arguendo, that the language of § 1146(a) is facially ambiguous, the ambiguity must be resolved in Florida's favor. We reach this conclusion after considering the parties' other arguments, to which we now turn. B Piccadilly insists that, whatever the degree of ambiguity on its face, § 1146(a) becomes even more ambiguous when read in context with other Bankruptcy Code provisions. Piccadilly asserts that if Congress had intended § 1146(a) to apply exclusively to transfers occurring after confirmation, it would have made its intent plain with an express temporal limitation similar to those appearing elsewhere in the Code. For example, § 1127 governs modifications to a Chapter 11 plan, providing that the proponent of a plan may modify the plan "at any time before confirmation," or, subject to certain restrictions, "at any time after confirmation of such plan." §§ 1127(a)-(b). Similar examples abound. See, e.g., § 1104(a) ("[a]t any time after the commencement of the case but before confirmation of a plan ..."); § 1104(c) ("[a]t any time before the confirmation of a plan ..."). Piccadilly emphasizes that, "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983) (internal quotation marks omitted). Because Congress did not impose a clear and commonly used temporal limitation in § 1146(a), Piccadilly concludes that Congress did not intend one to exist. Piccadilly buttresses its conclusion by pointing out that § 1146(b)—the subsection immediately following § 1146(a)—includes an express temporal limitation. See § 1146(b) (2000 ed., Supp. V) (providing that a bankruptcy court may declare certain tax consequences after the date a government unit responds to a plan proponent's request or "270 days after such request," whichever is earlier). But Congress included no such limitation in subsection (a). Piccadilly also relies on other Code provisions to bolster its argument that the term "under" preceding "a plan confirmed" in § 1146(a) should be read broadly—to mean "in accordance with" rather than the narrower "authorized by." Apart from § 302, discussed above, Piccadilly adverts to § 111, which states that an agency providing credit counseling to debtors is required to meet "the standards set forth under this section." § 111(b)(4)(A) (2000 *2334 ed., Supp. V). Piccadilly argues that this language requires the agency to meet "the standards set forth in this section," because reading the quoted language to mean "the standards set forth authorized by this section" would render the words "set forth" nonsensical. Piccadilly additionally refers to § 303(a), which provides that "[a]n involuntary case may be commenced only under chapter 7 or 11 of this title." Again, Piccadilly asserts that this language means "an involuntary case may be commenced only in chapter 7 or 11 of this title." It reasons that "under" in § 303(a) cannot mean "authorized by" because § 303(a) itself authorizes involuntary cases, and the provisions of Chapters 7 and 11 do not. Piccadilly makes a similar argument with respect to § 343, which provides that "[t]he debtor shall appear and submit to examination under oath at the meeting of creditors." Reading "under" to mean "authorized by" would make little sense here. On the basis of these examples, Piccadilly concludes that the term "under" is ambiguous. Finally, Piccadilly maintains that "under" in § 1146(a) should be construed broadly in light of § 365(g)(1) of the Bankruptcy Code, which provides that rejection of an executory contract or unexpired lease constitutes the equivalent of a prebankruptcy breach "if such contract or lease has not been assumed under this section or under a plan confirmed under chapter ... 11." In Hechinger, the Third Circuit concluded that substituting "authorized by" for "under" in § 1146(a) would be consistent with the use of the parallel language in § 365(g)(1). 335 F.3d, at 254. Piccadilly attempts to refute Hechinger's reading of § 365(g)(1), asserting that, because authorization for the assumption of a lease under a plan is described in § 1123(b)(2), which "circles back to section 365," such authorization cannot be "subject to" or "authorized by" Chapter 11. Brief for Respondent 39 (emphasis deleted); see 11 U.S.C. § 1123(b)(2) (providing that "a plan may ... subject to section 365 of this title, provide for the assumption, rejection, or assignment of any executory contract or unexpired lease of the debtor not previously rejected under such section"). The phrase "under a plan confirmed" in § 365(g)(1), contends Piccadilly, is thus best read to mean "in accordance with a plan confirmed" because a plan may provide for the assumption of an executory contract or unexpired lease but not—unlike § 365—be the ultimate authority for that assumption. As a result, Piccadilly concludes that the identical language of § 1146(a) should have the same meaning. Piccadilly supports this point with its assertion that, unlike sales, postconfirmation assumptions or rejections are not permitted under the Bankruptcy Code. See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529, 104 S. Ct. 1188, 79 L. Ed. 2d 482 (1984) (stating that in "a Chapter 11 reorganization, a debtor-in-possession has until a reorganization plan is confirmed to decide whether to accept or reject an executory contract"). Because, as Piccadilly contends, the phrase "under a plan confirmed under chapter ... 11" in § 365(g)(1) cannot refer to assumptions or rejections occurring after confirmation, it would be anomalous to read the identical phrase in § 1146(a) to cover only postconfirmation transfers. For its part, Florida argues that the statutory context of § 1146(a) supports its position that the stamp-tax exemption applies exclusively to postconfirmation transfers. It observes that the subchapter in which § 1146(a) appears is entitled, "POSTCONFIRMATION MATTERS." Florida contends that, while not dispositive, the placement of a provision in a particular subchapter suggests that its terms should be interpreted consistent *2335 with that subchapter. See Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme"). In addition, Florida dismisses Piccadilly's references to the temporal limitations in other Code provisions on the ground that it would have been superfluous for Congress to add any further limitations to § 1146(a)'s already unambiguous temporal element. Even on the assumption that the text of § 1146(a) is ambiguous, we are not persuaded by Piccadilly's contextual arguments. As noted above, Congress could have used language that made § 1146(a)'s temporal element clear beyond question. Unlike § 1146(a), however, the temporal language examples quoted by Piccadilly are indispensable to the operative meaning of the provisions in which they appear. Piccadilly's reliance on § 1127, for example, is misplaced because that section explicitly differentiates between preconfirmation modifications, see § 1127(a), and postconfirmation modifications, which are permissible "only if circumstances warrant" them, § 1127(b). It was unnecessary for Congress to include in § 1146(a) a phrase such as "at any time after confirmation of such plan" because the phrase "under a plan confirmed" is most naturally read to require that there be a confirmed plan at the time of the transfer. Even if we were to adopt Piccadilly's broad definition of "under," its interpretation of the statute faces other obstacles. The asset transfer here can hardly be said to have been consummated "in accordance with" any confirmed plan because, as of the closing date, Piccadilly had not even submitted its plan to the Bankruptcy Court for confirmation. Piccadilly's asset sale was thus not conducted "in accordance with" any plan confirmed under Chapter 11. Rather, it was conducted "in accordance with" the procedures set forth in Chapter 3—specifically, § 363(b)(1). To read the statute as Piccadilly proposes would make § 1146(a)'s exemption turn on whether a debtor-in-possession's actions are consistent with a legal instrument that does not exist—and indeed may not even be conceived of—at the time of the sale. Reading § 1146(a) in context with other relevant Code provisions, we find nothing justifying such a curious interpretation of what is a straightforward exemption. Nor does anything in § 365(g)(1) recommend Piccadilly's reading of § 1146(a). Section 365(g) generally allows a trustee to reject "an executory contract or unexpired lease of the debtor," i.e., to reject a contract that is unfavorable to the estate, subject to court approval. As the text makes clear, such approval may occur either under "this section," § 365(g)—i.e., "at any time before the confirmation of a plan," § 365(d)(2)—or "under a plan confirmed under chapter 9, 11, 12, or 13," § 365(g)(1). Piccadilly relies heavily on Bildisco, supra, in which this Court held that § 365 permits a debtor-in-possession to reject a collective-bargaining agreement like any other executory contract, and that doing so is not an unfair labor practice under the National Labor Relations Act. In reaching this conclusion, the Court observed that "a debtor-in-possession has until a reorganization plan is confirmed to decide whether to accept or reject an executory contract." 465 U.S., at 529, 104 S. Ct. 1188 (emphasis added). We agree with Bildisco's commonsense observation that the decision whether to reject a contract or lease must be made before confirmation. But that in no way undermines the fact that the rejection takes effect upon or after confirmation *2336 of the Chapter 11 plan (or before confirmation if pursuant to § 365(d)(2)). In the context of § 1146(a), the decision whether to transfer a given asset "under a plan confirmed" must be made prior to submitting the Chapter 11 plan to the bankruptcy court, but the transfer itself cannot be "under a plan confirmed" until the court confirms the plan in question. Only at that point does the transfer become eligible for the stamp-tax exemption.[3] If the statutory context suggests anything, it is that § 1146(a) is inapplicable to preconfirmation transfers. We find it informative that Congress placed § 1146(a) in a subchapter entitled, "POSTCONFIRMATION MATTERS." To be sure, a subchapter heading cannot substitute for the operative text of the statute. See, e.g., Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 212, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998) ("`[T]he title of a statute ... cannot limit the plain meaning of the text'"). Nonetheless, statutory titles and section headings "`are tools available for the resolution of a doubt about the meaning of a statute.'" Porter v. Nussle, 534 U.S. 516, 528, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). The placement of § 1146(a) within a subchapter expressly limited to postconfirmation matters undermines Piccadilly's view that § 1146(a) covers preconfirmation transfers. But even if we were fully to accept Piccadilly's textual and contextual arguments, they would establish at most that the statutory language is ambiguous. They do not—and largely are not intended to—demonstrate that § 1146(a)'s purported ambiguity should be resolved in Piccadilly's favor. Florida argues that various nontextual canons of construction require us to resolve any ambiguity in its favor. Piccadilly responds with substantive canons of its own. It is to these dueling canons of construction that we now turn. C Florida contends that even if the statutory text is deemed ambiguous, applicable substantive canons compel its interpretation of § 1146(a). Florida first invokes the canon that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change." Lorillard v. Pons, 434 U.S. 575, 580-581, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Florida observes that the relevant language of § 1146(a) relating to "under a plan confirmed" has remained unchanged since 1978 despite several revisions of the Bankruptcy Code. The most recent revision in 2005 occurred after the Fourth Circuit's decision in NVR and the Third Circuit's decision in Hechinger but before the Eleventh Circuit's decision below. Florida asserts that Congress ratified this longstanding interpretation when, in its most recent amendments to the Code, it "readopted" the stamp-tax provision verbatim as § 1146(a). Brief for Petitioner 26. Florida also invokes the substantive canon—on which the Third Circuit relied in Hechinger—that courts should "`proceed *2337 carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed.'" 335 F.3d, at 254 (quoting California State Bd. of Equalization v. Sierra Summit, Inc., 490 U.S. 844, 851-852, 109 S. Ct. 2228, 104 L. Ed. 2d 910 (1989)). In light of this directive, Florida contends that § 1146(a)'s language must be construed strictly in favor of the States to prevent unwarranted displacement of their tax laws. See National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 590, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995) (discussing principles of comity in taxation and the "federal reluctance to interfere with state taxation" given the "strong background presumption against interference"). Furthermore, Florida notes that the canon also discourages federal interference with the administration of a State's taxation scheme. See id., at 586, 590, 115 S. Ct. 2351. Florida contends that the Court of Appeals' extension of § 1146(a) to preconfirmation transfers directly interferes with the administration of the State's stamp tax, which is imposed "prior to recordation" of the instrument of transfer. Fla. Stat. §§ 201.01, 201.02(1) (2006). Extending the exemption to transfers that occurred months or years before a confirmable plan even existed, Florida explains, may require the States to "`unravel'" stamp taxes already collected. Brief for Petitioner 31. Alternatively, should a court grant an exemption under § 1146(a) before confirmation, States would be saddled with the task of monitoring whether the plan is ever eventually confirmed. In response, Piccadilly contends that the federalism principle articulated in Sierra Summit, supra, at 852, 109 S. Ct. 2228, does not apply where there is a "clear expression of an exemption from state taxation" overriding a State's authority to tax. In Piccadilly's view, that is precisely the case with regard to § 1146(a), which proscribes the imposition of stamp taxes and demonstrates Congress' intent to exempt a category of state taxation. Piccadilly further maintains that Florida's stamp tax is nothing more than a postpetition claim, specifically an administrative expense, which is paid as a priority claim ahead of the prepetition claims of most creditors. Equating Florida's receipt of tax revenue with a preference in favor of a particular claimant, Piccadilly argues that § 1146(a)'s ambiguous exemption should not be construed to diminish other claimants' recoveries. See Howard Delivery Service, Inc. v. Zurich American Ins. Co., 547 U.S. 651, 667, 126 S. Ct. 2105, 165 L. Ed. 2d 110 (2006) (emphasizing that "provisions allowing preferences must be tightly construed"). Reading the stamp-tax exemption too narrowly, Piccadilly maintains, "`is not only inconsistent with the policy of equality of distribution'" but also "`dilutes the value of the priority for those creditors Congress intended to prefer'"—those with prepetition claims. Brief for Respondent 54 (quoting Howard Delivery Serv., supra, at 667, 126 S. Ct. 2105). Above all, Piccadilly urges us to adopt the Court of Appeals' maxim that "a remedial statute such as the Bankruptcy Code should be liberally construed." 484 F.3d, at 1304; cf. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782, 72 S. Ct. 1011, 96 L. Ed. 1294 (1952). In Piccadilly's view, any ambiguity in the statutory text is overshadowed by § 1146(a)'s obvious purpose: to facilitate the Chapter 11 process "through giving tax relief." In re Jacoby-Bender, Inc., 758 F.2d 840, 841 (C.A.2 1985). Piccadilly characterizes the tax on asset transfers at issue here as tantamount to a levy on the bankruptcy process itself. A stamp tax like Florida's makes the sale of a debtor's property more expensive and *2338 reduces the total proceeds available to satisfy the creditors' claims, contrary to Congress' clear intent in enacting § 1146(a). What is unclear, Piccadilly argues, is why "Congress would have intended the anomaly that a transfer essential to a plan that occurs two minutes before confirmation may be taxed, but the same transfer occurring two seconds after may not." Brief for Respondent 43. After all, interpreting § 1146(a) in the manner Florida proposes would lead precisely to that result. And that, Piccadilly asserts, is "absurd" in light of § 1146(a)'s policy aim— evidenced by the provision's text and legislative history—of reducing the cost of asset transfers. In that vein, Piccadilly contends that interpreting § 1146(a) to apply solely to postconfirmation transfers would undermine Chapter 11's twin objectives of "preserving going concerns and maximizing property available to satisfy creditors." Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434, 453, 119 S. Ct. 1411, 143 L. Ed. 2d 607 (1999). In order to obtain the maximum value for its assets—especially assets rapidly declining in value—Piccadilly claims that a debtor often must close the sale before formal confirmation of the Chapter 11 plan. We agree with Florida that the federalism canon articulated in Sierra Summit and elsewhere obliges us to construe § 1146(a)'s exemption narrowly. Piccadilly's effort to evade the canon falls well short of the mark because reading § 1146(a) in the manner Piccadilly proposes would require us to do exactly what the canon counsels against. If we recognized an exemption for preconfirmation transfers, we would in effect be "`recogniz[ing] an exemption from state taxation that Congress has not clearly expressed'"—namely, an exemption for preconfirmation transfers. Sierra Summit, 490 U.S., at 851-852, 109 S. Ct. 2228 (emphasis added); see also Swarts v. Hammer, 194 U.S. 441, 444, 24 S. Ct. 695, 48 L. Ed. 1060 (1904) (reasoning that if Congress endeavored to exempt a debtor from state and local taxation, "the intention would be clearly expressed, not left to be collected or inferred from disputable considerations of convenience in administering the estate of the bankrupt"). Indeed, Piccadilly proves precisely this point by resting its entire case on the premise that Congress has expressed its stamp-tax exemption in ambiguous language. Therefore, far from being inapposite, the canon is decisive in this case. The canons on which Piccadilly relies are inapposite. While we agree with Piccadilly that "provisions allowing preferences must be tightly construed," Howard Delivery Serv., supra, at 667, 126 S. Ct. 2105, § 1146(a) is not a preference-granting provision. The statutory text makes no mention of preferences. Nor are we persuaded that in this case we should construe § 1146(a) "liberally" to serve its ostensibly "remedial" purpose. Based on the Eleventh Circuit's declaration that the Bankruptcy Code is a "remedial statute," Piccadilly would stretch the disallowance well beyond what the statutory text can naturally bear. Apart from the opinion below, however, the only authority Piccadilly offers is a 1952 decision of this Court interpreting the Shipping Commissioners Act of 1872. See Brief for Respondent 54 (citing Isbrandtsen, supra, at 782, 72 S. Ct. 1011). But unlike the statutory scheme in Isbrandtsen, which was "`designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad,'" 343 U.S., at 784, 72 S. Ct. 1011 (quoting Aguilar v. Standard Oil Co. of N. J., 318 U.S. 724, 728, 63 S. Ct. 930, 87 L. Ed. 1107 (1943)), the Bankruptcy Code—and Chapter 11 in particular—is not a remedial *2339 statute in that sense. To the contrary, this Court has rejected the notion that "Congress had a single purpose in enacting Chapter 11." Toibb v. Radloff, 501 U.S. 157, 163, 111 S. Ct. 2197, 115 L. Ed. 2d 145 (1991). Rather, Chapter 11 strikes a balance between a debtor's interest in reorganizing and restructuring its debts and the creditors' interest in maximizing the value of the bankruptcy estate. Ibid. The Code also accommodates the interests of the States in regulating property transfers by "`generally [leaving] the determination of property rights in the assets of a bankrupt's estate to state law.'" Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U.S. ___, ___, 127 S. Ct. 1199, 1205, 167 L. Ed. 2d 178 (2007). Such interests often do not coincide, and in this case, they clearly do not. We therefore decline to construe the exemption granted by § 1146(a) to the detriment of the State. As for Piccadilly's assertion that reading § 1146(a) to allow preconfirmation transfers to be taxed while exempting others moments later would amount to an "absurd" policy, we reiterate that "`it is not for us to substitute our view of ... policy for the legislation which has been passed by Congress.'" Hechinger, 335 F.3d, at 256. That said, we see no absurdity in reading § 1146(a) as setting forth a simple, bright-line rule instead of the complex, after-the-fact inquiry Piccadilly envisions. At bottom, we agree with the Fourth Circuit's summation of § 1146(a): "Congress struck a most reasonable balance. If a debtor is able to develop a Chapter 11 reorganization and obtain confirmation, then the debtor is to be afforded relief from certain taxation to facilitate the implementation of the reorganization plan. Before a debtor reaches this point, however, the state and local tax systems may not be subjected to federal interference." NVR, 189 F.3d, at 458. Lastly, to the extent the "practical realities" of Chapter 11 reorganizations are increasingly rendering postconfirmation transfers a thing of the past, see 484 F.3d, at 1304, it is incumbent upon the Legislature, and not the Judiciary, to determine whether § 1146(a) is in need of revision. See, e.g., Ali v. Federal Bureau of Prisons, 552 U.S. ___, ___, 128 S. Ct. 831, 841, 169 L. Ed. 2d 680 (2008) ("We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable"). III The most natural reading of § 1146(a)'s text, the provision's placement within the Code, and applicable substantive canons all lead to the same conclusion: Section 1146(a) affords a stamp-tax exemption only to transfers made pursuant to a Chapter 11 plan that has been confirmed. Because Piccadilly transferred its assets before its Chapter 11 plan was confirmed by the Bankruptcy Court, it may not rely on § 1146(a) to avoid Florida's stamp taxes. Accordingly, we reverse the judgment below and remand the case for further proceedings consistent with this opinion. It is so ordered.

The Bankruptcy Code provides a stamp-tax exemption for any asset transfer "under a plan confirmed under [Chapter 11]" of the Code (a) (2000 ed, Supp V) Respondent Piccadilly Cafeterias, Inc, was granted an exemption for assets transferred after it had filed for bankruptcy but before its Chapter 11 plan *30 was submitted to, and confirmed by, the Bankruptcy Court Petitioner, the Florida Department of Revenue, seeks reversal of the decision of the Court of Appeals upholding the exemption for Piccadilly's asset transfer Because we hold that 1146(a)'s stamp-tax exemption does not to transfers made before a plan is confirmed under Chapter 11, we reverse the judgment below I Piccadilly was founded in 1944 and was one of the Nation's most successful cafeteria chains until it began experiencing financial difficulties in the last decade On October 29, Piccadilly declared bankruptcy under Chapter 11 of the Bankruptcy Code, 1101 et seq (2000 ed and Supp V), and requested court authorization to sell substantially all its assets outside the ordinary course of business pursuant to 363(b)(1) (2000 ed, Supp V) Piccadilly prepared to sell its assets as a going concern and sought an exemption from any stamp taxes on the eventual transfer under 1146(a) of the Code[1] The Bankruptcy Court conducted an auction in which the winning bidder agreed to purchase Piccadilly's assets for $80 million On January 26, 2004, as a precondition to the sale, Piccadilly entered into a global settlement agreement with committees of senior secured noteholders and unsecured creditors The settlement agreement dictated the priority of distribution of the sale proceeds among Piccadilly's creditors On February 13, 2004, the Bankruptcy Court approved the proposed sale and settlement agreement The court also ruled that the transfer of assets was exempt from stamp taxes under 1146(a) The sale closed on March 16, 2004 Piccadilly filed its initial Chapter 11 plan in the Bankruptcy Court on March 26, 2004, and filed an amended plan on July 31, 2004[2] The plan provided for distribution of the sale proceeds in a manner consistent with the settlement agreement Before the Bankruptcy Court confirmed the plan, Florida filed an objection, seeking a declaration that the $39,200 in stamp taxes it had assessed on certain of Piccadilly's transferred assets fell outside 1146(a)'s exemption because the transfer had not been "under a plan confirmed" under Chapter 11 On October 21, 2004, the bankruptcy court confirmed the plan On cross-motions for summary judgment on the stamp-tax issue, the Bankruptcy Court granted summary judgment in favor *31 of Piccadilly, reasoning that the sale of substantially all Piccadilly's assets was a transfer "`under'" its confirmed plan because the sale was necessary to consummate the plan App D to Pet for Cert 40a-41a The District Court upheld the decision on the ground that 1146(a), in certain circumstances, affords a stamp-tax exemption even when a transfer occurs prior to confirmation In re Piccadilly Cafeterias, Inc, The Court of Appeals for the Eleventh Circuit affirmed, holding that " 1146[(a)]'s tax exemption may to those pre-confirmation transfers that are necessary to the consummation of a confirmed plan of reorganization, which, at the very least, requires that there be some nexus between the pre-confirmation transfer and the confirmed plan" In re Piccadilly Cafeterias, Inc, Finding the statutory text ambiguous, the Court of Appeals concluded that 1146(a) should be interpreted consistent with "the principle that a remedial statute such as the Bankruptcy Code should be liberally construed" The court further noted that its interpretation of 1146(a) better accounted for "the practical realities of Chapter 11 reorganization cases" because a debtor may need to transfer assets to induce relevant parties to endorse the proposed confirmation of a plan The Court of Appeals acknowledged that its holding conflicted with the approach taken by the Courts of Appeals for the Third and Fourth Circuits, which have held that 1146(a) "does not to transactions that occur prior to the confirmation of a plan under Chapter 11 of the Bankruptcy Code" In re Inv Co of Del, ; see also In re LP, (holding that 1146(a) "appl[ies] only to transfers under the Plan occurring after the date of confirmation") We granted certiorari, 552 US to resolve the conflict among the Courts of Appeals as to whether 1146(a) applies to preconfirmation transfers II Section 1146(a), entitled "Special tax provisions," provides: "The issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax" (Emphasis added) Florida asserts that 1146(a) applies only to postconfirmation sales; Piccadilly contends that it extends to preconfirmation transfers as long as they are made in accordance with a plan that is eventually confirmed Florida and Piccadilly base their competing readings of 1146(a) on the provision's text, on inferences drawn from other Code provisions, and on substantive canons of statutory construction We consider each of their arguments in turn A Florida contends that 1146(a)'s text unambiguously limits stamp-tax exemptions to postconfirmation transfers made under the authority of a confirmed plan It observes that the word "confirmed" modifies the word "plan" and is a past participle, ie, "[a] verb form indicating past or completed action or time that is used as a verbal adjective in phrases such as baked beans and finished work" American Heritage Dictionary 1287 (4th ed2000) Florida maintains that a past participle indicates past or completed action even when it is placed after the noun it modifies, as in "beans baked in the oven," or "work finished after midnight" *32 Thus, it argues, the phrase "plan confirmed" denotes a "confirmed plan"— meaning one that has been confirmed in the past Florida further contends that the word "under" in "under a plan confirmed" should be read to mean "with the authorization of" or "inferior or subordinate" to its referent, here the confirmed plan See Florida points out that, in the other two appearances of "under" in 1146(a), it clearly means "subject to" Invoking the textual canon that "`identical words used in different parts of the same act are intended to have the same meaning,'" Florida asserts the term must also have its core meaning of "subject to" in the phrase "under a plan confirmed" Florida thus reasons that to be eligible for 1146(a)'s exemption, a transfer must be subject to a plan that has been confirmed subject to 1129 (2000 ed and Supp V) Echoing the Fourth Circuit's reasoning in Florida concludes that a transfer made prior to the date of plan confirmation cannot be subject to, or under the authority of, something that did not exist at the time of the transfer—a confirmed plan Piccadilly counters that the statutory language does not unambiguously impose a temporal requirement It contends that "plan confirmed" is not necessarily the equivalent of "confirmed plan," and that had Congress intended the latter, it would have used that language, as it did in a related Code provision See 1142(b) (referring to "any instrument required to effect a transfer of property dealt with by a confirmed plan") Piccadilly also argues that "under" is just as easily read to mean "in accordance with" It observes that the variability of the term "under" is well-documented, noting that the American Heritage Dictionary 1395 (1976) provides 15 definitions, including "[i]n view of," "because of," "by virtue of," as well as "[s]ubject to the restraint of" See also at (recognizing that "[t]he word `under' has many dictionary definitions and must draw its meaning from its context") Although "under" appears several times in 1146(a), Piccadilly maintains there is no reason why a term of such common usage and variable meaning must have the same meaning each time it is used, even in the same sentence As an illustration, it points to 302(a) of the Bankruptcy Code, which states, "The commencement of a joint case under a chapter of this title constitutes an order for relief under such chapter" Piccadilly contends that this provision is best read as: "The commencement of a joint case subject to the provisions of a chapter of this title constitutes an order for relief in such chapter" Piccadilly thus concludes that the statutory text—standing alone—is susceptible of more than one interpretation See ("[W]e cannot say that the language of [ 1146(a)] rules out the possibility that `under a plan confirmed' means `in agreement with a plan confirmed'") While both sides present credible interpretations of 1146(a), Florida has the better one To be sure, Congress could have used more precise language— ie, "under a plan that has been confirmed"—and thus removed all ambiguity But the two readings of the language that Congress chose are not equally plausible: Of the two, Florida's is clearly the more natural The interpretation advanced by *33 Piccadilly and adopted by the Eleventh Circuit—that there must be "some nexus between the pre-confirmation transfer and the confirmed plan" for 1146(a) to 484 F3d, at —places greater strain on the statutory text than the simpler construction advanced by Florida and adopted by the Third and Fourth Circuits Furthermore, Piccadilly's emphasis on the distinction between "plan confirmed" and "confirmed plan" is unavailing because 1146(a) specifies not only that a tax-exempt transfer be "under a plan," but also that the plan in question be confirmed pursuant to 1129 Congress' placement of "plan confirmed" before "under section 1129" avoids the ambiguity that would have arisen had it used the term "confirmed plan," which could easily be read to mean that the transfer must be "under section 1129" rather than under a plan that was itself confirmed under 1129 Although we agree with Florida that the more natural reading of 1146(a) is that the exemption applies only to postconfirmation transfers, ultimately we need not decide whether the statute is unambiguous on its face Even assuming, arguendo, that the language of 1146(a) is facially ambiguous, the ambiguity must be resolved in Florida's favor We reach this conclusion after considering the parties' other arguments, to which we now turn B Piccadilly insists that, whatever the degree of ambiguity on its face, 1146(a) becomes even more ambiguous when read in context with other Bankruptcy Code provisions Piccadilly asserts that if Congress had intended 1146(a) to exclusively to transfers occurring after confirmation, it would have made its intent plain with an express temporal limitation similar to those appearing elsewhere in the Code For example, 1127 governs modifications to a Chapter 11 plan, providing that the proponent of a plan may modify the plan "at any time before confirmation," or, subject to certain restrictions, "at any time after confirmation of such plan" 1127(a)-(b) Similar examples abound See, eg, 1104(a) ("[a]t any time after the commencement of the case but before confirmation of a plan "); 1104(c) ("[a]t any time before the confirmation of a plan ") Piccadilly emphasizes that, "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" Because Congress did not impose a clear and commonly used temporal limitation in 1146(a), Piccadilly concludes that Congress did not intend one to exist Piccadilly buttresses its conclusion by pointing out that 1146(b)—the subsection immediately following 1146(a)—includes an express temporal limitation See 1146(b) (2000 ed, Supp V) (providing that a bankruptcy court may declare certain tax consequences after the date a government unit responds to a plan proponent's request or "270 days after such request," whichever is earlier) But Congress included no such limitation in subsection (a) Piccadilly also relies on other Code provisions to bolster its argument that the term "under" preceding "a plan confirmed" in 1146(a) should be read broadly—to mean "in accordance with" rather than the narrower "authorized by" Apart from 302, discussed above, Piccadilly adverts to 111, which states that an agency providing credit counseling to debtors is required to meet "the standards set forth under this section" 111(b)(4)(A) (2000 *34 ed, Supp V) Piccadilly argues that this language requires the agency to meet "the standards set forth in this section," because reading the quoted language to mean "the standards set forth authorized by this section" would render the words "set forth" nonsensical Piccadilly additionally refers to 303(a), which provides that "[a]n involuntary case may be commenced only under chapter 7 or 11 of this title" Again, Piccadilly asserts that this language means "an involuntary case may be commenced only in chapter 7 or 11 of this title" It reasons that "under" in 303(a) cannot mean "authorized by" because 303(a) itself authorizes involuntary cases, and the provisions of Chapters 7 and 11 do not Piccadilly makes a similar argument with respect to 343, which provides that "[t]he debtor shall appear and submit to examination under oath at the meeting of creditors" Reading "under" to mean "authorized by" would make little sense here On the basis of these examples, Piccadilly concludes that the term "under" is ambiguous Finally, Piccadilly maintains that "under" in 1146(a) should be construed broadly in light of 365(g)(1) of the Bankruptcy Code, which provides that rejection of an executory contract or unexpired lease constitutes the equivalent of a prebankruptcy breach "if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 11" In the Third Circuit concluded that substituting "authorized by" for "under" in 1146(a) would be consistent with the use of the parallel language in 365(g)(1) Piccadilly attempts to refute 's reading of 365(g)(1), asserting that, because authorization for the assumption of a lease under a plan is described in 11(b)(2), which "circles back to section 365," such authorization cannot be "subject to" or "authorized by" Chapter 11 Brief for Respondent 39 (emphasis deleted); see 11 USC 11(b)(2) (providing that "a plan may subject to section 365 of this title, provide for the assumption, rejection, or assignment of any executory contract or unexpired lease of the debtor not previously rejected under such section") The phrase "under a plan confirmed" in 365(g)(1), contends Piccadilly, is thus best read to mean "in accordance with a plan confirmed" because a plan may provide for the assumption of an executory contract or unexpired lease but not—unlike 365—be the ultimate authority for that assumption As a result, Piccadilly concludes that the identical language of 1146(a) should have the same meaning Piccadilly supports this point with its assertion that, unlike sales, postconfirmation assumptions or rejections are not permitted under the Bankruptcy Code See NLRB v & 465 US 513, 104 S Ct 1188, 79 L Ed 2d 482 Because, as Piccadilly contends, the phrase "under a plan confirmed under chapter 11" in 365(g)(1) cannot refer to assumptions or rejections occurring after confirmation, it would be anomalous to read the identical phrase in 1146(a) to cover only postconfirmation transfers For its part, Florida argues that the statutory context of 1146(a) supports its position that the stamp-tax exemption applies exclusively to postconfirmation transfers It observes that the subchapter in which 1146(a) appears is entitled, "POSTCONFIRMATION MATTERS" Florida contends that, while not dispositive, the placement of a provision in a particular subchapter suggests that its terms should be interpreted consistent *35 with that subchapter See Davis v Michigan Dept of Treasury, 489 US 803, 109 S Ct 1500, 103 L Ed 2d 891 In addition, Florida dismisses Piccadilly's references to the temporal limitations in other Code provisions on the ground that it would have been superfluous for Congress to add any further limitations to 1146(a)'s already unambiguous temporal element Even on the assumption that the text of 1146(a) is ambiguous, we are not persuaded by Piccadilly's contextual arguments As noted above, Congress could have used language that made 1146(a)'s temporal element clear beyond question Unlike 1146(a), however, the temporal language examples quoted by Piccadilly are indispensable to the operative meaning of the provisions in which they appear Piccadilly's reliance on 1127, for example, is misplaced because that section explicitly differentiates between preconfirmation modifications, see 1127(a), and postconfirmation modifications, which are permissible "only if circumstances warrant" them, 1127(b) It was unnecessary for Congress to include in 1146(a) a phrase such as "at any time after confirmation of such plan" because the phrase "under a plan confirmed" is most naturally read to require that there be a confirmed plan at the time of the transfer Even if we were to adopt Piccadilly's broad definition of "under," its interpretation of the statute faces other obstacles The asset transfer here can hardly be said to have been consummated "in accordance with" any confirmed plan because, as of the closing date, Piccadilly had not even submitted its plan to the Bankruptcy Court for confirmation Piccadilly's asset sale was thus not conducted "in accordance with" any plan confirmed under Chapter 11 Rather, it was conducted "in accordance with" the procedures set forth in Chapter 3—specifically, 363(b)(1) To read the statute as Piccadilly proposes would make 1146(a)'s exemption turn on whether a debtor-in-possession's actions are consistent with a legal instrument that does not exist—and indeed may not even be conceived of—at the time of the sale Reading 1146(a) in context with other relevant Code provisions, we find nothing justifying such a curious interpretation of what is a straightforward exemption Nor does anything in 365(g)(1) recommend Piccadilly's reading of 1146(a) Section 365(g) generally allows a trustee to reject "an executory contract or unexpired lease of the debtor," ie, to reject a contract that is unfavorable to the estate, subject to court approval As the text makes clear, such approval may occur either under "this section," 365(g)—ie, "at any time before the confirmation of a plan," 365(d)(2)—or "under a plan confirmed under chapter 9, 11, 12, or 13," 365(g)(1) Piccadilly relies heavily on in which this Court held that 365 permits a debtor-in-possession to reject a collective-bargaining agreement like any other executory contract, and that doing so is not an unfair labor practice under the National Labor Relations Act In reaching this conclusion, the Court observed that "a debtor-in-possession has until a reorganization plan is confirmed to decide whether to accept or reject an executory contract" 465 US, at 104 S Ct 1188 (emphasis added) We agree with 's commonsense observation that the decision whether to reject a contract or lease must be made before confirmation But that in no way undermines the fact that the rejection takes effect upon or after confirmation *36 of the Chapter 11 plan (or before confirmation if pursuant to 365(d)(2)) In the context of 1146(a), the decision whether to transfer a given asset "under a plan confirmed" must be made prior to submitting the Chapter 11 plan to the bankruptcy court, but the transfer itself cannot be "under a plan confirmed" until the court confirms the plan in question Only at that point does the transfer become eligible for the stamp-tax exemption[3] If the statutory context suggests anything, it is that 1146(a) is inapplicable to preconfirmation transfers We find it informative that Congress placed 1146(a) in a subchapter entitled, "POSTCONFIRMATION MATTERS" To be sure, a subchapter heading cannot substitute for the operative text of the statute See, eg, Pennsylvania Dept of Corrections v Yeskey, 524 US 206, 118 S Ct 141 L Ed 2d 215 ("`[T]he title of a statute cannot limit the plain meaning of the text'") Nonetheless, statutory titles and section headings "`are tools available for the resolution of a doubt about the meaning of a statute'" Porter v Nussle, 534 US 516, 122 S Ct 983, 152 L Ed 2d 12 The placement of 1146(a) within a subchapter expressly limited to postconfirmation matters undermines Piccadilly's view that 1146(a) covers preconfirmation transfers But even if we were fully to accept Piccadilly's textual and contextual arguments, they would establish at most that the statutory language is ambiguous They do not—and largely are not intended to—demonstrate that 1146(a)'s purported ambiguity should be resolved in Piccadilly's favor Florida argues that various nontextual canons of construction require us to resolve any ambiguity in its favor Piccadilly responds with substantive canons of its own It is to these dueling canons of construction that we now turn C Florida contends that even if the statutory text is deemed ambiguous, applicable substantive canons compel its interpretation of 1146(a) Florida first invokes the canon that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it reenacts a statute without change" Lorillard v Pons, 434 US 575, 98 S Ct 866, 55 L Ed 2d 40 Florida observes that the relevant language of 1146(a) relating to "under a plan confirmed" has remained unchanged since despite several revisions of the Bankruptcy Code The most recent revision in 2005 occurred after the Fourth Circuit's decision in and the Third Circuit's decision in but before the Eleventh Circuit's decision below Florida asserts that Congress ratified this longstanding interpretation when, in its most recent amendments to the Code, it "readopted" the stamp-tax provision verbatim as 1146(a) Brief for Petitioner 26 Florida also invokes the substantive canon—on which the Third Circuit relied in —that courts should "`proceed *37 carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed'" ) In light of this directive, Florida contends that 1146(a)'s language must be construed strictly in favor of the States to prevent unwarranted displacement of their tax laws See National Private Truck Council, Inc v Oklahoma Tax Comm'n, 515 US 582, 115 S Ct 51, 132 L Ed 2d 509 Furthermore, Florida notes that the canon also discourages federal interference with the administration of a State's taxation scheme See at 586, 115 S Ct 51 Florida contends that the Court of Appeals' extension of 1146(a) to preconfirmation transfers directly interferes with the administration of the State's stamp tax, which is imposed "prior to recordation" of the instrument of transfer Fla Stat 20101, 20102(1) Extending the exemption to transfers that occurred months or years before a confirmable plan even existed, Florida explains, may require the States to "`unravel'" stamp taxes already collected Brief for Petitioner 31 Alternatively, should a court grant an exemption under 1146(a) before confirmation, States would be saddled with the task of monitoring whether the plan is ever eventually confirmed In response, Piccadilly contends that the federalism principle articulated in Sierra 109 S Ct 2228, does not where there is a "clear expression of an exemption from state taxation" overriding a State's authority to tax In Piccadilly's view, that is precisely the case with regard to 1146(a), which proscribes the imposition of stamp taxes and demonstrates Congress' intent to exempt a category of state taxation Piccadilly further maintains that Florida's stamp tax is nothing more than a postpetition claim, specifically an administrative expense, which is paid as a priority claim ahead of the prepetition claims of most creditors Equating Florida's receipt of tax revenue with a preference in favor of a particular claimant, Piccadilly argues that 1146(a)'s ambiguous exemption should not be construed to diminish other claimants' recoveries See Howard Delivery Service, Inc v Zurich American Ins Co, 547 US 651, 126 S Ct 2105, 165 L Ed 2d 110 Reading the stamp-tax exemption too narrowly, Piccadilly maintains, "`is not only inconsistent with the policy of equality of distribution'" but also "`dilutes the value of the priority for those creditors Congress intended to prefer'"—those with prepetition claims Brief for Respondent 54 (quoting Howard Delivery Serv, at 126 S Ct 2105) Above all, Piccadilly urges us to adopt the Court of Appeals' maxim that "a remedial statute such as the Bankruptcy Code should be liberally construed" 484 F3d, at ; cf Co v Johnson, 343 US 779, 72 S Ct 1011, 96 L Ed 1294 In Piccadilly's view, any ambiguity in the statutory text is overshadowed by 1146(a)'s obvious purpose: to facilitate the Chapter 11 process "through giving tax relief" In re Jacoby-Bender, Inc, 758 F2d 840, Piccadilly characterizes the tax on asset transfers at issue here as tantamount to a levy on the bankruptcy process itself A stamp tax like Florida's makes the sale of a debtor's property more expensive and *38 reduces the total proceeds available to satisfy the creditors' claims, contrary to Congress' clear intent in enacting 1146(a) What is unclear, Piccadilly argues, is why "Congress would have intended the anomaly that a transfer essential to a plan that occurs two minutes before confirmation may be taxed, but the same transfer occurring two seconds after may not" Brief for Respondent 43 After all, interpreting 1146(a) in the manner Florida proposes would lead precisely to that result And that, Piccadilly asserts, is "absurd" in light of 1146(a)'s policy aim— evidenced by the provision's text and legislative history—of reducing the cost of asset transfers In that vein, Piccadilly contends that interpreting 1146(a) to solely to postconfirmation transfers would undermine Chapter 11's twin objectives of "preserving going concerns and maximizing property available to satisfy creditors" Bank of America Nat Trust and Sav Assn v 203 North LaSalle Street Partnership, 526 US 434, 119 S Ct 1411, 143 L Ed 2d 607 In order to obtain the maximum value for its assets—especially assets rapidly declining in value—Piccadilly claims that a debtor often must close the sale before formal confirmation of the Chapter 11 plan We agree with Florida that the federalism canon articulated in Sierra and elsewhere obliges us to construe 1146(a)'s exemption narrowly Piccadilly's effort to evade the canon falls well short of the mark because reading 1146(a) in the manner Piccadilly proposes would require us to do exactly what the canon counsels against If we recognized an exemption for preconfirmation transfers, we would in effect be "`recogniz[ing] an exemption from state taxation that Congress has not clearly expressed'"—namely, an exemption for preconfirmation transfers Sierra 490 US, at 109 S Ct 2228 (emphasis added); see also Swarts v Hammer, 194 US 441, 24 S Ct 695, 48 L Ed 1060 Indeed, Piccadilly proves precisely this point by resting its entire case on the premise that Congress has expressed its stamp-tax exemption in ambiguous language Therefore, far from being inapposite, the canon is decisive in this case The canons on which Piccadilly relies are inapposite While we agree with Piccadilly that "provisions allowing preferences must be tightly construed," Howard Delivery Serv, at 126 S Ct 2105, 1146(a) is not a preference-granting provision The statutory text makes no mention of preferences Nor are we persuaded that in this case we should construe 1146(a) "liberally" to serve its ostensibly "remedial" purpose Based on the Eleventh Circuit's declaration that the Bankruptcy Code is a "remedial statute," Piccadilly would stretch the disallowance well beyond what the statutory text can naturally bear Apart from the opinion below, however, the only authority Piccadilly offers is a decision of this Court interpreting the Shipping Commissioners Act of 1872 See Brief for Respondent 54 (citing at 72 S Ct 1011) But unlike the statutory scheme in which was "`designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad,'" 343 US, at 784, 72 S Ct 1011 ), the Bankruptcy Code—and Chapter 11 in particular—is not a remedial *39 statute in that sense To the contrary, this Court has rejected the notion that "Congress had a single purpose in enacting Chapter 11" Toibb v Radloff, 501 US 157, 111 S Ct 2197, 115 L Ed 2d 145 Rather, Chapter 11 strikes a balance between a debtor's interest in reorganizing and restructuring its debts and the creditors' interest in maximizing the value of the bankruptcy estate The Code also accommodates the interests of the States in regulating property transfers by "`generally [leaving] the determination of property rights in the assets of a bankrupt's estate to state law'" Travelers Casualty & Surety Co of America v Pacific Gas & Elec Co, 549 US 127 S Ct 1199, 167 L Ed 2d 178 Such interests often do not coincide, and in this case, they clearly do not We therefore decline to construe the exemption granted by 1146(a) to the detriment of the State As for Piccadilly's assertion that reading 1146(a) to allow preconfirmation transfers to be taxed while exempting others moments later would amount to an "absurd" policy, we reiterate that "`it is not for us to substitute our view of policy for the legislation which has been passed by Congress'" 335 F3d, at 256 That said, we see no absurdity in reading 1146(a) as setting forth a simple, bright-line rule instead of the complex, after-the-fact inquiry Piccadilly envisions At bottom, we agree with the Fourth Circuit's summation of 1146(a): "Congress struck a most reasonable balance If a debtor is able to develop a Chapter 11 reorganization and obtain confirmation, then the debtor is to be afforded relief from certain taxation to facilitate the implementation of the reorganization plan Before a debtor reaches this point, however, the state and local tax systems may not be subjected to federal interference" 189 F3d, at Lastly, to the extent the "practical realities" of Chapter 11 reorganizations are increasingly rendering postconfirmation transfers a thing of the past, see 484 F3d, at it is incumbent upon the Legislature, and not the Judiciary, to determine whether 1146(a) is in need of revision See, eg, Ali v Federal Bureau of Prisons, 552 US 128 S Ct 831, 169 L Ed 2d 680 III The most natural reading of 1146(a)'s text, the provision's placement within the Code, and applicable substantive canons all lead to the same conclusion: Section 1146(a) affords a stamp-tax exemption only to transfers made pursuant to a Chapter 11 plan that has been confirmed Because Piccadilly transferred its assets before its Chapter 11 plan was confirmed by the Bankruptcy Court, it may not rely on 1146(a) to avoid Florida's stamp taxes Accordingly, we reverse the judgment below and remand the case for further proceedings consistent with this opinion It is so ordered

Justice Breyer

dissenting

Florida Dept. of Rev. v. PICCADILLY

2008-06-16

https://www.courtlistener.com/opinion/145791/florida-dept-of-rev-v-piccadilly/

https://www.courtlistener.com/api/rest/v3/clusters/145791/

2007-057

The Bankruptcy Code provides that the "transfer" of an asset "under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax." 11 U.S.C. § 1146(a) (2000 ed., Supp V) (previously § 1146(c)) (emphasis added). In this case, the debtor's reorganization "plan" provides for the "transfer" of assets. But the "plan" itself was not "confirmed under section 1129 of this title" (i.e., the Bankruptcy Judge did not formally approve the plan) *2340 until after the "transfer" of assets took place. See § 1129 (2000 ed. and Supp. V) (detailing the requirements for bankruptcy court approval of a Chapter 11 plan). Hence we must ask whether the time of transfer matters. Do the statutory words "under a plan confirmed under section 1129 of this title" apply only where a transfer takes place "under a plan" that at the time of the transfer already has been "confirmed under section 1129 of this title"? Or, do they also apply where a transfer takes place "under a plan" that subsequently is "confirmed under section 1129 of this title"? The Court concludes that the statutory phrase applies only where a transfer takes place "under a plan" that at the time of transfer already has been "confirmed under section 1129 of this title." In my view, however, the statutory phrase applies "under a plan" that at the time of transfer either already has been or subsequently is "confirmed." In a word, the majority believes that the time (pre- or post-transfer) at which the bankruptcy judge confirms the reorganization plan matters. I believe that it does not. (And construing the provision to refer to a plan that simply "is" confirmed would require us to read fewer words into the statute than the Court's construction, which reads the provision to refer only to a plan "that has been" confirmed, ante, at 2339.) The statutory language itself is perfectly ambiguous on the point. Linguistically speaking, it is no more difficult to apply the words "plan confirmed" to instances in which the "plan" subsequently is "confirmed" than to restrict their application to instances in which the "plan" already has been "confirmed." See In re Piccadilly Cafeterias, Inc., 484 F.3d 1299, 1304 (C.A.11 2007) (per curiam) ("[T]he statute can plausibly be read either as describing eligible transfers to include transfers `under a plan confirmed' regardless of when the plan is confirmed, or ... imposing a temporal restriction on when the confirmation of the plan must occur" (emphasis in original)). Cf. In re Hechinger Inv. Co. of Del., 335 F.3d 243, 252-253 (C.A.3 2003) (majority opinion of Alito, J.) (noting more than one "plausible interpretation"); In re NVR, LP, 189 F.3d 442, 458 (C.A.4 1999) (Wilkinson, J., concurring in part and concurring in judgment) ("equally possible that the provision requires only that the transfer occur `under'—i.e., that it be inferior or subordinate to—`a plan' that is ultimately `confirmed'"). But cf. ante, at 2332-2333 (majority believes its reading is "clearly the more natural"). Nor can I find any text-based argument that points clearly in one direction rather than the other. Indeed, the majority, after methodically combing the textualist beaches, finds that a comparison with other somewhat similar phrases in the Bankruptcy Code sheds little light. For example, on the one hand, if Congress thought the time of confirmation mattered, why did it not say so expressly as it has done elsewhere in the Code? See, e.g., 11 U.S.C. § 1127(b) (plan proponent may modify it "at any time after confirmation" (emphasis added)); § 1104(a) ("[a]t any time after the commencement of the case but before confirmation" (emphasis added)); § 1104(c) ("at any time before the confirmation of a plan" (emphasis added)); § 1114(e)(2) ("before a plan confirmed under section 1129 of this title is effective" (emphasis added)). On the other hand, if Congress thought the time of confirmation did not matter, why did it place this provision in a subchapter entitled "POSTCONFIRMATION MATTERS"? See 11 U.S.C., ch. 11, subch. III. (And yet one could also argue that the tax exemption provision appears under the "postconfirmation matters" title because the trigger for the exemption is plan confirmation. *2341 Thus, the exemption is a "postconfirmation matter," regardless of when the transfer occurs.) The canons of interpretation offer little help. And the majority, for the most part, seems to agree. It ultimately rests its interpretive conclusion upon this Court's statement that courts "must proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed." California State Bd. of Equalization v. Sierra Summit, Inc., 490 U.S. 844, 851-852, 109 S. Ct. 2228, 104 L. Ed. 2d 910 (1989) (internal quotation marks omitted). See ante, at 2338. But when, as here, we interpret a provision the express point of which is to exempt some category of state taxation, how can the statement in Sierra Summit prove determinative? See § 1146(a) ("The issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax" (emphasis added)). Neither does Florida's related claim, protesting federal interference in the administration of a State's taxation scheme seem plausible. See Brief for Petitioner 32-33 (noting the "additional difficulties and complexities that will proliferate" under the lower court's decision). If Florida now requires transferees to file a pre-existing confirmed plan in order to avoid payment of the stamp tax, then why could Florida not require a transferee under a not-yet-confirmed plan to pay the stamp tax and then file the plan after its confirmation in order to obtain a refund? (If there is some other, less curable, practical problem, Florida has not explained what it is.) Given these difficulties, I suspect that the majority's reliance upon Sierra Summit's "canon," ante, at 2336-2337, reflects no more than an effort to find the proverbial "any port" in this interpretive storm. The absence of a clear answer in text or canons, however, should not lead us to judicial despair. Consistent with Court precedent, we can and should ask a further question: Why would Congress have insisted upon temporal limits? What reasonable purpose might such limits serve? See, e.g., Dolan v. Postal Service, 546 U.S. 481, 486, 126 S. Ct. 1252, 163 L. Ed. 2d 1079 (2006) ("Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis" (emphasis added)); Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997) (the Court's construction of a statute's meaning based in part on its consideration of the statute's "primary purpose" (emphasis added)). In fact, the majority's reading of temporal limits in § 1146(a) serves no reasonable congressional purpose at all. The statute's purpose is apparent on its face. It seeks to further Chapter 11's basic objectives: (1) "preserving going concerns" and (2) "maximizing property available to satisfy creditors." Bank of America Nat. Trust and Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U.S. 434, 453, 119 S. Ct. 1411, 143 L. Ed. 2d 607 (1999). See also Toibb v. Radloff, 501 U.S. 157, 163, 111 S. Ct. 2197, 115 L. Ed. 2d 145 (1991) (Chapter 11 "embodies the general [Bankruptcy] Code policy of maximizing the value of the bankruptcy estate"). As an important bankruptcy treatise notes, "[i]n addition to tax relief, the purpose of the exemption of [§ 1146(a)] is to encourage and facilitate bankruptcy asset sales." 8 Collier on Bankruptcy ¶ 1146.02, p. 1146-3 (15th ed. rev.2005). It furthers these objectives where, e.g., asset transfers are at issue, by turning over to the estate (for *2342 the use of creditors or to facilitate reorganization) funds that otherwise would go to pay state stamp taxes on plan-related transferred assets. The requirement that the transfers take place pursuant to a reorganization "plan" that is "confirmed" provides the bankruptcy judge's assurance that the transfer meets with creditor approval and the requirements laid out in § 1129. How would the majority's temporal limitation further these statutory objectives? It would not do so in any way. From the perspective of these purposes, it makes no difference whether a transfer takes place before or after the plan is confirmed. In both instances the exemption puts in the hands of the creditors or the estate money that would otherwise go to the State in the form of a stamp tax. In both instances the confirmation of the related plan assures the legitimacy (from bankruptcy law's perspective) of the plan that provides for the assets transfer. Moreover, one major reason why a transfer may take place before rather than after a plan is confirmed is that the preconfirmation bankruptcy process takes time. As the Administrative Office of the United States Courts recently reported, "[a] Chapter 11 case may continue for many years." Bankruptcy Basics (Apr. 2006), online at http://www.uscourts.gov/bankruptcycourts/bankruptcybasics/chapter11.html (as visited June 13, 2008, and available in Clerk of Court's case file). Accord, In re Hechinger Inv. Co. of Del., 254 B.R. 306, 320 (Bkrtcy.D.Del.2000) (noting it may run "a year or two"). And a firm (or its assets) may have more value (say, as a going concern) where sale takes place quickly. As the District Court in this case acknowledged, "there are times when it is more advantageous for the debtor to begin to sell as many assets as quickly as possible in order to insure that the assets do not lose value." In re Piccadilly Cafeterias, Inc., 379 B.R. 215, 224 (S.D.Fla.2006) (internal quotations marks and alteration omitted). See, e.g., In re Webster Classic Auctions, Inc., 318 B.R. 216, 219 (Bkrtcy.M.D.Fla.2004) (recognizing "the inestimable benefit to a Chapter 11 estate to sell a piece of property at the most opportune time—whether pre- or postconfirmation—as opposed to requiring all concerned to wait for a postconfirmation sale in order to receive the tax relief Congress obviously intended"); In re Medical Software Solutions, 286 B.R. 431, 441 (Bkrtcy.D.Utah 2002) (approving preconfirmation sale of debtor's assets recognizing that the assets' "value is reducing rapidly" and there was only a narrow window for a viable sale of the assets). Thus, an immediate sale can often make more revenue available to creditors or for reorganization of the remaining assets. Stamp taxes on related transfers simply reduce the funds available for any such legitimate purposes. And insofar as the Court's interpretation of the statute reduces the funds made available, that interpretation inhibits the statute's efforts to achieve its basic objectives. Worse than that, if the potential loss of stamp tax revenue threatens delay in implementing any such decision to sell, then creditors (or the remaining reorganized enterprise) could suffer far more serious harm. They could lose the extra revenues that a speedy sale might otherwise produce. See, e.g., In re Met-L-Wood Corp., 861 F.2d 1012, 1017 (C.A.7 1988) (as suppliers and customers "shy away," it can make sense quickly to sell business to other owners so that it "can continue" to operate "free of the stigma and uncertainty of bankruptcy"). In the present case, for example, Piccadilly, by selling assets quickly after strategic negotiation, realized $80 million, considerably more than the $54 million originally offered before Piccadilly *2343 filed for bankruptcy. That fact, along with the Bankruptcy Court's finding of "sound business reasons" for the prompt sale of Piccadilly's assets and that the expeditious sale was "in the best interests of creditors of [Piccadilly] and other parties in interest," App. 32a, suggest that considerably less would have been available for creditors had Piccadilly waited until after the plan's confirmation to execute the sale plan. What conceivable reason could Congress have had for silently writing into the statute's language a temporal distinction with such consequences? The majority can find none. It simply says that the result is not "`absurd'" and notes the advantages of a "bright-line rule." Ante, at 2339. I agree that the majority's interpretation is not absurd and do not dispute the advantages of a clear rule. But I think the statute supplies a clear enough rule—transfers are exempt when there is confirmation and are not exempt when there is no confirmation. And I see no reason to adopt the majority's preferred construction (that only transfers completed after plan confirmation are exempt), where it conflicts with the statute's purpose. Of course, we should not substitute "`"our view of ... policy"'" for the statute that Congress enacted. Ante, at 2339 (emphasis added). But we certainly should consider Congress' view of the policy for the statute it created, and that view inheres in the statute's purpose. "Statutory interpretation is not a game of blind man's bluff. Judges are free to consider statutory language in light of a statute's basic purposes." Dole Food Co. v. Patrickson, 538 U.S. 468, 484, 123 S. Ct. 1655, 155 L. Ed. 2d 643 (2003) (BREYER, J., concurring in part and dissenting in part). It is the majority's failure to work with this important tool of statutory interpretation that has led it to construe the present statute in a way that, in my view, runs contrary to what Congress would have hoped for and expected. For these reasons, I respectfully dissent.

The Bankruptcy Code provides that the "transfer" of an asset "under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax." (a) (2000 ed., Supp V) (previously 1146(c)) (emphasis added). In this case, the debtor's reorganization "plan" provides for the "transfer" of assets. But the "plan" itself was not "confirmed under section 1129 of this title" (i.e., the Bankruptcy Judge did not formally approve the plan) *2340 until after the "transfer" of assets took place. See 1129 (2000 ed. and Supp. V) (detailing the requirements for bankruptcy court approval of a Chapter 11 plan). Hence we must ask whether the time of transfer matters. Do the statutory words "under a plan confirmed under section 1129 of this title" apply only where a transfer takes place "under a plan" that at the time of the transfer already has been "confirmed under section 1129 of this title"? Or, do they also apply where a transfer takes place "under a plan" that subsequently is "confirmed under section 1129 of this title"? The Court concludes that the statutory phrase applies only where a transfer takes place "under a plan" that at the time of transfer already has been "confirmed under section 1129 of this title." In my view, however, the statutory phrase applies "under a plan" that at the time of transfer either already has been or subsequently is "confirmed." In a word, the majority believes that the time (pre- or post-transfer) at which the bankruptcy judge confirms the reorganization plan matters. I believe that it does not. (And construing the provision to refer to a plan that simply "is" confirmed would require us to read fewer words into the statute than the Court's construction, which reads the provision to refer only to a plan "that has been" confirmed, ante, at 2339.) The statutory language itself is perfectly ambiguous on the point. Linguistically speaking, it is no more difficult to apply the words "plan confirmed" to instances in which the "plan" subsequently is "confirmed" than to restrict their application to instances in which the "plan" already has been "confirmed." See In re Piccadilly Cafeterias, Inc., ("[T]he statute can plausibly be read either as describing eligible transfers to include transfers `under a plan confirmed' regardless of when the plan is confirmed, or imposing a temporal restriction on when the confirmation of the plan must occur" (emphasis in original)). Cf. In re Hechinger Inv. Co. of Del., (noting more than one "plausible interpretation"); In re NVR, LP, ("equally possible that the provision requires only that the transfer occur `under'—i.e., that it be inferior or subordinate to—`a plan' that is ultimately `confirmed'"). But cf. ante, at 2332-2333 (majority believes its reading is "clearly the more natural"). Nor can I find any text-based argument that points clearly in one direction rather than the other. Indeed, the majority, after methodically combing the textualist beaches, finds that a comparison with other somewhat similar phrases in the Bankruptcy Code sheds little light. For example, on the one hand, if Congress thought the time of confirmation mattered, why did it not say so expressly as it has done elsewhere in the Code? See, e.g., 11 U.S.C. 1127(b) ; 1104(a) ("[a]t any time after the commencement of the case but before confirmation" (emphasis added)); 1104(c) ("at any time before the confirmation of a plan" (emphasis added)); 1114(e)(2) ("before a plan confirmed under section 1129 of this title is effective" (emphasis added)). On the other hand, if Congress thought the time of confirmation did not matter, why did it place this provision in a subchapter entitled "POSTCONFIRMATION MATTERS"? See 11 U.S.C., ch. 11, subch. III. (And yet one could also argue that the tax exemption provision appears under the "postconfirmation matters" title because the trigger for the exemption is plan confirmation. *2341 Thus, the exemption is a "postconfirmation matter," regardless of when the transfer occurs.) The canons of interpretation offer little help. And the majority, for the most part, seems to agree. It ultimately rests its interpretive conclusion upon this Court's statement that courts "must proceed carefully when asked to recognize an exemption from state taxation that Congress has not clearly expressed." California State Bd. of See ante, at 2338. But when, as here, we interpret a provision the express point of which is to exempt some category of state taxation, how can the statement in Sierra Summit prove determinative? See 1146(a) ("The issuance, transfer, or exchange of a security, or the making or delivery of an instrument of transfer under a plan confirmed under section 1129 of this title, may not be taxed under any law imposing a stamp tax or similar tax" (emphasis added)). Neither does Florida's related claim, protesting federal interference in the administration of a State's taxation scheme seem plausible. See Brief for Petitioner 32-33 (noting the "additional difficulties and complexities that will proliferate" under the lower court's decision). If Florida now requires transferees to file a pre-existing confirmed plan in order to avoid payment of the stamp tax, then why could Florida not require a transferee under a not-yet-confirmed plan to pay the stamp tax and then file the plan after its confirmation in order to obtain a refund? (If there is some other, less curable, practical problem, Florida has not explained what it is.) Given these difficulties, I suspect that the majority's reliance upon Sierra Summit's "canon," ante, at 2336-2337, reflects no more than an effort to find the proverbial "any port" in this interpretive storm. The absence of a clear answer in text or canons, however, should not lead us to judicial despair. Consistent with Court precedent, we can and should ask a further question: Why would Congress have insisted upon temporal limits? What reasonable purpose might such limits serve? See, e.g., ; In fact, the majority's reading of temporal limits in 1146(a) serves no reasonable congressional purpose at all. The statute's purpose is apparent on its face. It seeks to further Chapter 11's basic objectives: (1) "preserving going concerns" and (2) "maximizing property available to satisfy creditors." Bank of America Nat. Trust and Sav. See also As an important bankruptcy treatise notes, "[i]n addition to tax relief, the purpose of the exemption of [ 1146(a)] is to encourage and facilitate bankruptcy asset sales." 8 Collier on Bankruptcy ¶ 1146.02, p. 1146-3 (15th ed. rev.2005). It furthers these objectives where, e.g., asset transfers are at issue, by turning over to the estate (for *2342 the use of creditors or to facilitate reorganization) funds that otherwise would go to pay state stamp taxes on plan-related transferred assets. The requirement that the transfers take place pursuant to a reorganization "plan" that is "confirmed" provides the bankruptcy judge's assurance that the transfer meets with creditor approval and the requirements laid out in 1129. How would the majority's temporal limitation further these statutory objectives? It would not do so in any way. From the perspective of these purposes, it makes no difference whether a transfer takes place before or after the plan is confirmed. In both instances the exemption puts in the hands of the creditors or the estate money that would otherwise go to the State in the form of a stamp tax. In both instances the confirmation of the related plan assures the legitimacy (from bankruptcy law's perspective) of the plan that provides for the assets transfer. Moreover, one major reason why a transfer may take place before rather than after a plan is confirmed is that the preconfirmation bankruptcy process takes time. As the Administrative Office of the United States Courts recently reported, "[a] Chapter 11 case may continue for many years." Bankruptcy Basics online at http://www.uscourts.gov/bankruptcycourts/bankruptcybasics/chapter11.html (as visited June 13, 2008, and available in Clerk of Court's case file). Accord, In re Hechinger Inv. Co. of Del., (Bkrtcy.D.Del.2000) (noting it may run "a year or two"). And a firm (or its assets) may have more value (say, as a going concern) where sale takes place quickly. As the District Court in this case acknowledged, "there are times when it is more advantageous for the debtor to begin to sell as many assets as quickly as possible in order to insure that the assets do not lose value." In re Piccadilly Cafeterias, Inc., (internal quotations marks and alteration omitted). See, e.g., In re Webster Classic Auctions, Inc., (Bkrtcy.M.D.Fla.2004) (recognizing "the inestimable benefit to a Chapter 11 estate to sell a piece of property at the most opportune time—whether pre- or postconfirmation—as opposed to requiring all concerned to wait for a postconfirmation sale in order to receive the tax relief Congress obviously intended"); In re Medical Software Solutions, Thus, an immediate sale can often make more revenue available to creditors or for reorganization of the remaining assets. Stamp taxes on related transfers simply reduce the funds available for any such legitimate purposes. And insofar as the Court's interpretation of the statute reduces the funds made available, that interpretation inhibits the statute's efforts to achieve its basic objectives. Worse than that, if the potential loss of stamp tax revenue threatens delay in implementing any such decision to sell, then creditors (or the remaining reorganized enterprise) could suffer far more serious harm. They could lose the extra revenues that a speedy sale might otherwise produce. See, e.g., In re Met-L-Wood Corp., In the present case, for example, Piccadilly, by selling assets quickly after strategic negotiation, realized $80 million, considerably more than the $54 million originally offered before Piccadilly *2343 filed for bankruptcy. That fact, along with the Bankruptcy Court's finding of "sound business reasons" for the prompt sale of Piccadilly's assets and that the expeditious sale was "in the best interests of creditors of [Piccadilly] and other parties in interest," App. 32a, suggest that considerably less would have been available for creditors had Piccadilly waited until after the plan's confirmation to execute the sale plan. What conceivable reason could Congress have had for silently writing into the statute's language a temporal distinction with such consequences? The majority can find none. It simply says that the result is not "`absurd'" and notes the advantages of a "bright-line rule." Ante, at 2339. I agree that the majority's interpretation is not absurd and do not dispute the advantages of a clear rule. But I think the statute supplies a clear enough rule—transfers are exempt when there is confirmation and are not exempt when there is no confirmation. And I see no reason to adopt the majority's preferred construction (that only transfers completed after plan confirmation are exempt), where it conflicts with the statute's purpose. Of course, we should not substitute "`"our view of policy"'" for the statute that Congress enacted. Ante, at 2339 (emphasis added). But we certainly should consider Congress' view of the policy for the statute it created, and that view inheres in the statute's purpose. "Statutory interpretation is not a game of blind man's bluff. Judges are free to consider statutory language in light of a statute's basic purposes." Dole Food It is the majority's failure to work with this important tool of statutory interpretation that has led it to construe the present statute in a way that, in my view, runs contrary to what Congress would have hoped for and expected. For these reasons, I respectfully dissent.

Justice Kagan

majority

Kahler v. Kansas

2020-03-23

https://www.courtlistener.com/opinion/4738309/kahler-v-kansas/

https://www.courtlistener.com/api/rest/v3/clusters/4738309/

This case is about Kansas’s treatment of a criminal de- fendant’s insanity claim. In Kansas, a defendant can in- voke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental ill- ness after conviction to justify either a reduced term of im- prisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a de- fendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when com- mitting his crime. We hold that the Clause imposes no such requirement. I A In Clark v. Arizona, 548 U.S. 735, 749 (2006), this Court catalogued state insanity defenses, counting four “strains variously combined to yield a diversity of American stand- ards” for when to absolve mentally ill defendants of crimi- nal culpability. The first strain asks about a defendant’s 2 KAHLER v. KANSAS Opinion of the Court “cognitive capacity”—whether a mental illness left him “un- able to understand what he [was] doing” when he commit- ted a crime. Id., at 747, 749. The second examines his “moral capacity”—whether his illness rendered him “un- able to understand that his action [was] wrong.” Ibid. Those two inquiries, Clark explained, appeared as alternative pathways to acquittal in the landmark English ruling M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843), as well as in many follow-on American decisions and statutes: If the defendant lacks either cognitive or moral ca- pacity, he is not criminally responsible for his behavior. Yet a third “building block[ ]” of state insanity tests, gaining popularity from the mid-19th century on, focuses on “voli- tional incapacity”—whether a defendant’s mental illness made him subject to “irresistible[] impulse[s]” or otherwise unable to “control[ ] his actions.” Clark, 548 U.S., at 749, 750, n. 11; see, e.g., Parsons v. State, 81 Ala. 577, 597, 2 So. 854, 866–867 (1887). And bringing up the rear, in Clark’s narration, the “product-of-mental-illness test” broadly con- siders whether the defendant’s criminal act stemmed from a mental disease. 548 U.S., at 749–750. As Clark explained, even that taxonomy fails to capture the field’s complexity. See id., at 750, n. 11. Most notable here, M’Naghten’s “moral capacity” prong later produced a spinoff, adopted in many States, that does not refer to mo- rality at all. Instead of examining whether a mentally ill defendant could grasp that his act was immoral, some ju- risdictions took to asking whether the defendant could un- derstand that his act was illegal. Compare, e.g., People v. Schmidt, 216 N.Y. 324, 333–334, 110 N.E. 945, 947 (1915) (Cardozo, J.) (asking about moral right and wrong), with, e.g., State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979) (substituting ideas of legal right and wrong). That change in legal standard matters when a mentally ill defendant knew that his act violated the law yet believed it morally justified. See, e.g., Schmidt, 216 N.Y., at 339, 110 N. E., at Cite as: 589 U. S. ____ (2020) 3 Opinion of the Court 949; People v. Serravo, 823 P.2d 128, 135 (Colo. 1992).1 Kansas law provides that “[i]t shall be a defense to a pros- ecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged.” Kan. Stat. Ann. §21–5209 (2018 Cum. Supp.).2 Under that statute, a defendant may introduce any evidence of any mental illness to show that he did not have the intent needed to commit the charged crime. Suppose, for example, that the defend- ant shot someone dead and goes on trial for murder. He may then offer psychiatric testimony that he did not under- stand the function of a gun or the consequences of its use— more generally stated, “the nature and quality” of his ac- tions. M’Naghten, 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722. And a jury crediting that testimony must acquit him. As everyone here agrees, Kansas law thus uses M’Naghten’s “cognitive capacity” prong—the inquiry into whether a mentally ill defendant could comprehend what he was do- ing when he committed a crime. See Brief for Petitioner 41; Brief for Respondent 31; Brief for United States as Amicus Curiae 18. If the defendant had no such capacity, he could not form the requisite intent—and thus is not criminally responsible. At the same time, the Kansas statute provides that “[m]ental disease or defect is not otherwise a defense.” §21– 5209. In other words, Kansas does not recognize any addi- tional way that mental illness can produce an acquittal.3 —————— 1 Another complicating factor in Clark’s classification scheme is that States “limit, in varying degrees, which sorts of mental illness” can sup- port an insanity claim. Clark v. Arizona, 548 U.S. 735, 750, n. 11 (2006). So even two States using the same test for judging culpability may apply it to differently sized sets of offenders. See infra, at 21, n. 11. 2 At the time of the crime in this case, a materially identical provision was codified at §22–3220 (2007). 3 Four other States similarly exonerate a mentally ill defendant only when he cannot understand the nature of his actions and so cannot form the requisite mens rea. See Alaska Stat. §§12.47.010(a), 12.47.020 4 KAHLER v. KANSAS Opinion of the Court Most important for this case, a defendant’s moral incapac- ity cannot exonerate him, as it would if Kansas had adopted both original prongs of M’Naghten. Assume, for example, that a defendant killed someone because of an “insane de- lusion that God ha[d] ordained the sacrifice.” Schmidt, 216 N.Y., at 339, 110 N. E., at 949. The defendant knew what he was doing (killing another person), but he could not tell moral right from wrong; indeed, he thought the murder morally justified. In many States, that fact would preclude a criminal conviction, although it would almost always lead to commitment in a mental health facility. In Kansas, by contrast, evidence of a mentally ill defendant’s moral inca- pacity—or indeed, of anything except his cognitive inability to form the needed mens rea—can play no role in determin- ing guilt. That partly closed-door policy changes once a verdict is in. At the sentencing phase, a Kansas defendant has wide latitude to raise his mental illness as a reason to judge him not fully culpable and so to lessen his punishment. See §§21–6815(c)(1)(C), 21–6625(a). He may present evidence (of the kind M’Naghten deemed relevant) that his dis- ease made him unable to understand his act’s moral wrong- ness—as in the example just given of religious delusion. See §21–6625(a). Or he may try to show (in line with M’Naghten’s spinoff ) that the illness prevented him from “appreciat[ing] the [conduct’s] criminality.” §21– 6625(a)(6). Or again, he may offer testimony (here invoking volitional incapacity) that he simply could not “conform [his] conduct” to legal restraints. Ibid. Kansas sentencing law thus provides for an individualized determination of how mental illness, in any or all of its aspects, affects cul- pability. And the same kind of evidence can persuade a court to place a defendant who needs psychiatric care in a —————— (2018); Idaho Code Ann. §§18–207(1), (3) (2016); Mont. Code Ann. §46– 14–102 (2019); Utah Code §76–2–305 (2017). Cite as: 589 U. S. ____ (2020) 5 Opinion of the Court mental health facility rather than a prison. See §22–3430. In that way, a defendant in Kansas lacking, say, moral ca- pacity may wind up in the same kind of institution as a like defendant in a State that would bar his conviction. B This case arises from a terrible crime. In early 2009, Ka- ren Kahler filed for divorce from James Kahler and moved out of their home with their two teenage daughters and 9-year-old son. Over the following months, James Kahler became more and more distraught. On Thanksgiving week- end, he drove to the home of Karen’s grandmother, where he knew his family was staying. Kahler entered through the back door and saw Karen and his son. He shot Karen twice, while allowing his son to flee the house. He then moved through the residence, shooting Karen’s grand- mother and each of his daughters in turn. All four of his victims died. Kahler surrendered to the police the next day and was charged with capital murder. Before trial, Kahler filed a motion arguing that Kansas’s treatment of insanity claims violates the Fourteenth Amendment’s Due Process Clause. Kansas, he asserted, had “unconstitutionally abolished the insanity defense” by allowing the conviction of a mentally ill person “who cannot tell the difference between right and wrong.” App. 11–12. The trial court denied the motion, leaving Kahler to at- tempt to show through psychiatric and other testimony that severe depression had prevented him from forming the in- tent to kill. See id., at 16; §21–5209. The jury convicted Kahler of capital murder. At the penalty phase, the court permitted Kahler to offer additional evidence of his mental illness and to argue in whatever way he liked that it should mitigate his sentence. The jury still decided to impose the death penalty. Kahler appealed, again challenging the constitutionality 6 KAHLER v. KANSAS Opinion of the Court of Kansas’s approach to insanity claims. The Kansas Su- preme Court rejected his argument, relying on an earlier precedential decision. See 307 Kan. 374, 400–401, 410 P.3d 105, 124–125 (2018) (discussing State v. Bethel, 275 Kan. 456, 66 P.3d 840 (2003)). There, the court denied that any single version of the insanity defense is so “ingrained in our legal system” as to count as “fundamental.” Id., at 473, 66 P. 3d, at 851. The court thus found that “[d]ue pro- cess does not mandate that a State adopt a particular in- sanity test.” Ibid. Kahler then asked this Court to decide whether the Due Process Clause requires States to provide an insanity de- fense that acquits a defendant who could not “distinguish right from wrong” when committing his crime—or, other- wise put, whether that Clause requires States to adopt the moral-incapacity test from M’Naghten. Pet. for Cert. 18. We granted certiorari, 586 U. S. ___ (2019), and now hold it does not.4 II A A challenge like Kahler’s must surmount a high bar. Un- der well-settled precedent, a state rule about criminal lia- bility—laying out either the elements of or the defenses to a crime—violates due process only if it “offends some prin- ciple of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Leland v. Or- egon, 343 U.S. 790, 798 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is “historical practice.” Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (plurality opinion). And in assessing that practice, —————— 4 Kahler also asked us to decide whether the Eighth Amendment re- quires that States make available the moral-incapacity defense. See Pet. for Cert. 18. But that claim is not properly before us. Kahler did not raise the argument below, and the Kansas courts therefore did not ad- dress it. Cite as: 589 U. S. ____ (2020) 7 Opinion of the Court we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g., id., at 44–45; Patterson v. New York, 432 U.S. 197, 202 (1977). The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choos- ing another. An affirmative answer, though not unheard of, is rare. See, e.g., Clark, 548 U.S., at 752 (“[T]he concep- tualization of criminal offenses” is mostly left to the States). In Powell v. Texas, 392 U.S. 514 (1968), this Court ex- plained why. There, Texas declined to recognize “chronic alcoholism” as a defense to the crime of public drunkenness. Id., at 517 (plurality opinion). The Court upheld that deci- sion, emphasizing the paramount role of the States in set- ting “standards of criminal responsibility.” Id., at 533. In refusing to impose “a constitutional doctrine” defining those standards, the Court invoked the many “interlocking and overlapping concepts” that the law uses to assess when a person should be held criminally accountable for “his anti- social deeds.” Id., at 535–536. “The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress”—the Court counted them off—reflect both the “evolving aims of the criminal law” and the “changing religious, moral, phil- osophical, and medical views of the nature of man.” Id., at 536. Or said a bit differently, crafting those doctrines in- volves balancing and rebalancing over time complex and oft-competing ideas about “social policy” and “moral culpa- bility”—about the criminal law’s “practical effectiveness” and its “ethical foundations.” Id., at 538, 545, 548 (Black, J., concurring). That “constantly shifting adjustment” could not proceed in the face of rigid “[c]onstitution[al] for- mulas.” Id., at 536–537 (plurality opinion). Within broad limits, Powell thus concluded, “doctrine[s] of criminal re- sponsibility” must remain “the province of the States.” Id., at 534, 536. 8 KAHLER v. KANSAS Opinion of the Court Nowhere has the Court hewed more closely to that view than in addressing the contours of the insanity defense. Here, uncertainties about the human mind loom large. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 81 (1985) (“[P]sychia- trists disagree widely and frequently on what constitutes mental illness, on [proper] diagnos[es, and] on cure and treatment”). Even as some puzzles get resolved, others emerge. And those perennial gaps in knowledge intersect with differing opinions about how far, and in what ways, mental illness should excuse criminal conduct. See Clark, 548 U.S., at 749–752 (canvassing how those competing views produced a wealth of insanity tests); supra, at 1–2. “This whole problem,” we have noted, “has evoked wide dis- agreement.” Leland, 343 U.S., at 801. On such unsettled ground, we have hesitated to reduce “experimentation, and freeze [the] dialogue between law and psychiatry into a rigid constitutional mold.” Powell, 392 U.S., at 536–537. Indeed, while addressing the demand for an alcoholism de- fense in Powell, the Court pronounced—as something close to self-evident—that “[n]othing could be less fruitful” than to define a specific “insanity test in constitutional terms.” Id., at 536. And twice before we have declined to do so. In Leland v. Oregon, a criminal defendant challenged as a violation of due process the State’s use of the moral-incapacity test of insan- ity—the very test Kahler now asks us to require. See 343 U.S., at 800–801. According to the defendant, Oregon in- stead had to adopt the volitional-incapacity (or irresistible- impulse) test to comply with the Constitution. See ibid.; supra, at 2. We rejected that argument. “[P]sychiatry,” we first noted, “has made tremendous strides since [the moral- incapacity] test was laid down in M’Naghten’s Case,” imply- ing that the test seemed a tad outdated. 343 U.S., at 800– 801. But still, we reasoned, “the progress of science has not reached a point where its learning” would demand “elimi- nat[ing] the right and wrong test from [the] criminal law.” Cite as: 589 U. S. ____ (2020) 9 Opinion of the Court Id., at 801. And anyway, we continued, the “choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy” about when mental illness should absolve someone of “criminal responsibility.” Ibid. The matter was thus best left to each State to decide on its own. The dissent agreed (while parting from the majority on an- other ground): “[I]t would be indefensible to impose upon the States[ ] one test rather than another for determining criminal culpability” for the mentally ill, “and thereby to displace a State’s own choice.” Id., at 803 (opinion of Frank- furter, J.). A half-century later, we reasoned similarly in Clark. There, the defendant objected to Arizona’s decision to dis- card the cognitive-incapacity prong of M’Naghten and leave in place only the moral-incapacity one—essentially the flip- side of what Kansas has done. Again, we saw no due pro- cess problem. Many States, we acknowledged, allowed a defendant to show insanity through either prong of M’Naghten. See 548 U.S., at 750. But we denied that this approach “represents the minimum that a government must provide.” Id., at 748. In so doing, we invoked the States’ traditional “capacity to define crimes and defenses,” and noted how views of mental illness had been particularly “subject to flux and disagreement.” Id., at 749, 752. And then we surveyed the disparate ways that state laws had historically excused criminal conduct because of mental dis- ease—those “strains variously combined to yield a diversity of American standards.” See id., at 749–752; supra, at 1–2. The takeaway was “clear”: A State’s “insanity rule[ ] is sub- stantially open to state choice.” Clark, 548 U.S., at 752. Reiterating Powell’s statement, Clark held that “no partic- ular” insanity test serves as “a baseline for due process.” 548 U.S., at 752. Or said just a bit differently, that “due process imposes no single canonical formulation of legal in- sanity.” Id., at 753. 10 KAHLER v. KANSAS Opinion of the Court B Yet Kahler maintains that Kansas’s treatment of insan- ity fails to satisfy due process. He sometimes makes his argument in the broadest of strokes, as he did before trial. See supra, at 5. Kansas, he then contends, has altogether “abolished the insanity defense,” in disregard of hundreds of years of historical practice. Brief for Petitioner 39. His central claim, though, is more confined. It is that Kansas has impermissibly jettisoned the moral-incapacity test for insanity. See id., at 12, 23. As earlier noted, both Clark and Leland described that test as coming from M’Naghten. See 548 U.S., at 749; 343 U. S., at 801; supra, at 2, 8. But according to Kahler (and the dissent), the moral-incapacity inquiry emerged centuries before that decision, thus form- ing part of the English common-law heritage this country inherited. See Brief for Petitioner 21, 42; post, at 4–14 (opinion of BREYER, J.). And the test, he claims, served for all that time—and continuing into the present—as the touchstone of legal insanity: If a defendant could not under- stand that his act was morally wrong, then he could not be found criminally liable. See Brief for Petitioner 20–23; see also post, at 15. So Kahler concludes that the moral- incapacity standard is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Leland, 343 U.S., at 798; see supra, at 6. In essence—and contra Clark—that test is the “single canoni- cal formulation of legal insanity” and thus the irreducible “baseline for due process.” 548 U.S., at 752–753; see supra, at 9.5 —————— 5 Although the dissent at times claims to the contrary, its argument is the same. Given the clear direction of our precedent, the dissent must purport to grant the States “leeway” in defining legal insanity. Post, at 1. But the entirety of the dissent’s historical analysis focuses on the moral-incapacity standard—attempting to show, just as Kahler does, that it both preceded and succeeded M’Naghten. See post, at 4–17. And in line with that narration, the dissent insists on moral understanding Cite as: 589 U. S. ____ (2020) 11 Opinion of the Court One point, first, of agreement: Kahler is right that for hundreds of years jurists and judges have recognized insan- ity (however defined) as relieving responsibility for a crime. “In criminal cases therefore,” Sir William Blackstone wrote, “lunatics are not chargeable for their own acts, if committed when under these incapacities.” 4 Commentaries on the Laws of England 24 (1769). Sir Edward Coke even earlier explained that in criminal cases, “the act and wrong of a mad man shall not be imputed to him.” 2 Institutes of the Laws of England §405, p. 247b (1628) (Coke). And so too Henry de Bracton thought that a “madman” could no sooner be found criminally liable than a child. 2 Bracton on Laws and Customs of England 384 (S. Thorne transl. 1968) (Brac- ton). That principle of non-culpability appeared in case af- ter case involving allegedly insane defendants, on both sides of the Atlantic. “The defense of insanity[] is a defense for all crimes[,] from the highest to the lowest,” said the Court in Old Bailey. Trial of Samuel Burt (July 19, 1786), in 6 Proceedings in the Old Bailey 874 (E. Hodgson ed. 1788) (Old Bailey Proceedings). Repeated Justice Story, when riding circuit: “In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibil- ity.” United States v. Drew, 25 F. Cas. 913 (No. 14,993) (CC Mass. 1828); see also, e.g., State v. Marler, 2 Ala. 43, 49 (1841) (“If the prisoner was insane, he was not an account- able being”); Cornwell v. State, 8 Tenn. 147, 156 (1827) (“[P]erfect madness” will “free a man from punishment for crime”). We have not found a single case to the contrary. —————— as the indispensable criterion of legal sanity—the sine qua non of crimi- nal responsibility. See, e.g., post, at 1, 3–4, 8–9, 18–21. Indeed, the dis- sent offers only one way the States have actual “leeway” to change their insanity rules: They can “expand upon M’Naghten’s principles” by find- ing that even some who have moral capacity are insane. Post, at 22. But that is just to say that moral capacity is the constitutional floor—again, exactly what Kahler argues. 12 KAHLER v. KANSAS Opinion of the Court But neither do we think Kansas departs from that broad principle. First, Kansas has an insanity defense negating criminal liability—even though not the type Kahler de- mands. As noted earlier, Kansas law provides that it is “a defense to a prosecution” that “the defendant, as a result of mental disease or defect, lacked the culpable mental state required” for a crime. §21–5209; see supra, at 3. That pro- vision enables a defendant to present psychiatric and other evidence of mental illness to defend himself against a crim- inal charge. More specifically, the defendant can use that evidence to show that his illness left him without the cogni- tive capacity to form the requisite intent. See supra, at 3. Recall that such a defense was exactly what the defendant in Clark wanted, in preference to Arizona’s moral-incapacity defense: His (unsuccessful) appeal rested on the trial court’s exclusion of psychiatric testimony to show that he lacked the relevant mens rea. See 548 U.S., at 745–747; supra, at 9. Here, Kahler could do what Clark could not—try to show through such testimony that he had no intent to kill. Of course, Kahler would have preferred Arizona’s kind of in- sanity defense (just as Clark would have liked Kansas’s). But that does not mean that Kansas (any more than Ari- zona) failed to offer any insanity defense at all. Second, and significantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. See §§21–6815(c)(1)(C), 21–6625(a); supra, at 4. A mentally ill defendant may argue there that he is not blameworthy because he could not tell the difference be- tween right and wrong. Or, because he did not know his conduct broke the law. Or, because he could not control his behavior. Or, because of anything else. In other words, any manifestation of mental illness that Kansas’s guilt-phase insanity defense disregards—including the moral incapac- ity Kahler highlights—can come in later to mitigate culpa- bility and lessen punishment. And that same kind of evi- dence can persuade a judge to replace any prison term with Cite as: 589 U. S. ____ (2020) 13 Opinion of the Court commitment to a mental health facility. See §22–3430; su- pra, at 4–5. So as noted above, a defendant arguing moral incapacity may well receive the same treatment in Kansas as in States that would acquit—and, almost certainly, com- mit—him for that reason. See supra, at 4–5. In sum, Kan- sas does not bar, but only channels to sentencing, the men- tal health evidence that falls outside its intent-based insanity defense. When combined with Kansas’s allowance of mental health evidence to show a defendant’s inability to form criminal intent, that sentencing regime defeats Kahler’s charge that the State has “abolish[ed] the insanity defense entirely.”6 Brief for Petitioner 39. So Kahler can prevail here only if he can show (again, contra Clark) that due process demands a specific test of legal insanity—namely, whether mental illness prevented a defendant from understanding his act as immoral. Kan- sas, as we have explained, does not use that type of insanity rule. See supra, at 3–4. If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder mor- ally justified. In Kansas’s judgment, that delusion does not make an intentional killer entirely blameless. See Brief for Respondent 40. Rather than eliminate, it only lessens the defendant’s moral culpability. See ibid. And sentencing is the appropriate place to consider mitigation: The deci- sionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See ibid. In any event, so Kansas thinks.7 Those —————— 6 We here conclude only that Kansas’s scheme does not abolish the in- sanity defense. We say nothing, one way or the other, about whether any other scheme might do so. 7 The dissent is therefore wrong to suggest that Kansas’s law has be- come untethered from moral judgments about culpability. See post, at 1, 3, 16–22. No doubt, Kansas’s moral judgments differ from the dissent’s. Again, Kansas believes that an intentional killer is not wholly blameless, even if, for example, he thought his actions commanded by God. The dissent, in contrast, considers Kansas’s view benighted (as maybe some 14 KAHLER v. KANSAS Opinion of the Court views are contested and contestable; other States—many others—have made a different choice. But Kahler must show more than that. He must show that adopting the moral-incapacity version of the insanity rule is not a choice at all—because, again, that version is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Leland, 343 U.S., at 798. And he cannot. The historical record is, on any fair reading, complex—even messy. As we will detail, it reveals early versions of not only Kahler’s proposed standard but also Kansas’s alternative. Early commentators on the common law proposed vari- ous formulations of the insanity defense, with some favor- ing a morality inquiry and others a mens rea approach. Kahler cites William Lambard’s 16th-century treatise de- fining a “mad man” as one who “hath no knowledge of good nor evil” (the right and wrong of the day). Eirenarcha, ch. 21, p. 218 (1581). He likewise points to William Hawkins’s statement, over a hundred years later, that a “lunatick[ ]” is not punishable because “under a natural disability of dis- tinguishing between good and evil.” 1 Pleas of the Crown §1, p. 2 (1716) (capitalization omitted). Both true enough. But other early versions of the insanity test—and from a more famous trio of jurists—demanded the kind of cognitive —————— in the majority do too). But that is not a dispute, as the dissent suggests, about whether morality should play a role in assigning legal responsibil- ity. It is instead a disagreement about what morality entails—that is, about when a defendant is morally culpable for an act like murder. See State v. Bethel, 275 Kan. 456, 465–471, 66 P.3d 840, 847–850 (2003) (ac- cepting Kansas’s view that “moral blameworthiness” is linked to a de- fendant’s intent to kill, rather than to his ability to tell right from wrong). And we have made clear, from Leland to Powell to Clark, that courts do not get to make such judgments. See supra, at 7–9. Instead, the States have broad discretion to decide who counts as blameworthy, and to weigh that along with other factors in defining the elements of, and defenses to, crimes. Cite as: 589 U. S. ____ (2020) 15 Opinion of the Court impairment that prevented a defendant from understand- ing the nature of his acts, and thus intending his crime. Henry de Bracton’s 13th-century treatise gave rise to what became known as the “wild beast” test. See J. Biggs, The Guilty Mind 82 (1955). Used for hundreds of years, it lik- ened a “madman” to an “animal[ ] which lack[s] reason” and so could not have “the intention to injure.” Bracton 384; see ibid. (A “madman” cannot commit a crime because “[i]t is will and purpose which mark” misdeeds). Sir Edward Coke similarly linked the definition of insanity to a defendant’s inability to form criminal intent. He described a legally in- sane person in 1628 as so utterly “without his mind or dis- cretion” that he could not have the needed mens rea. 2 Coke §405, at 247b. So too Lord Matthew Hale a century later. He explained that insanity involves “a total alienation of the mind or perfect madness,” such that a defendant could not act “animo felonico,” meaning with felonious intent. 1 Pleas of the Crown, ch. 4, pp. 30, 37 (1736); see id., at 37 (“[F]or being under a full alienation of mind, he acts not per electionem or intentionem [by choice or intent]”).8 —————— 8 The dissent tries to recruit these three jurists to the side of the moral- incapacity test, see post, at 5–7, but cannot succeed. Even the carefully curated passages the dissent quotes focus on cognitive capability rather than moral judgment. See, e.g., post, at 5–6 (asking whether a defendant had “sense and reason” or “understanding and liberty of will”). In so doing, they refer to the defendant’s ability to form the requisite mens rea, or felonious intent. See Clark, 548 U.S., at 747; supra, at 1–3. The dissent still insists all is not lost because (it says) mens rea itself hinged at common law on a defendant’s “moral understanding.” Post, at 8–9. Here, the dissent infers from the use of “good-from-evil” language in various common-law treatises and cases that moral blameworthiness must have defined the mens rea inquiry. See ibid. But to begin with— and to repeat the point made in the text—the most influential treatises used little of that language, emphasizing instead the need for a defend- ant to intend his act in the ordinary sense of the term. And as we will explain, the joint presence of references to mens rea and moral under- standing in other common-law sources involving insanity does not show that most jurists saw the two concepts as one and the same. See infra, 16 KAHLER v. KANSAS Opinion of the Court Quite a few of the old common-law cases similarly stressed the issue of cognitive capacity. To be sure, even these cases included some references to the ability to tell right from wrong (and the dissent eagerly cherry-picks every one of them). But the decisions’ overall focus was less on whether a defendant thought his act moral than on whether he had the ability to do much thinking at all. In the canonical case of Rex v. Arnold, 16 How. St. Tr. 695 (1724), for example, the jury charge descended straight from Bracton: “[I]t is not every kind of frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as is to be exempted from punish- ment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.” Id., at 764–765. And the court offered an accompanying test linking that lack of reason to mens rea: If a man is “deprived of his rea- son, and consequently of his intention, he cannot be guilty.” Id., at 764; see ibid. (defining a “madman” as a “person that hath no design”); see also Trial of William Walker (Apr. 21, 1784), in 4 Old Bailey Proceedings 544, 547 (asking whether the defendant had a “distemper of mind which had deprived him of the use of his reason” or instead whether “he knew what he was doing [and] meant to do it”); Beverley’s Case, 4 Co. Rep. 123b, 124b, 76 Eng. Rep. 1118, 1121 (K. B. 1603) —————— at 16–19. Some may well have viewed mens rea through a moral prism; but others emphasized cognitive understanding in using that term; and still others combined the moral and cognitive in diverse ways. Which is to say that the record is far more complicated than the dissent lets on, with jurists invoking, both within particular sources and across all of them, a variety of ways to resolve insanity claims. And under our long- established precedent, that motley sort of history cannot provide the ba- sis for a successful due process claim. Cite as: 589 U. S. ____ (2020) 17 Opinion of the Court (asking whether a man “is deprived of reason and under- standing” and so “cannot have a felonious intent”). The House of Lords used much the same standard in Rex v. Lord Ferrers, 19 How. St. Tr. 886 (1760), when sitting in judg- ment on one of its members. There, the Solicitor General told the Lords to address “the capacity and intention of the noble prisoner.” Id., at 948. Relying heavily on Hale’s trea- tise, he defined the legally insane as suffering from an “al- ienation of mind” and a “total[ ] want of reason.” Id., at 947. And in recapping the evidence on that issue, he asked about the defendant’s intention: “Did [Ferrers] proceed with de- liberation? Did he know the consequences” of his act? Id., at 948.9 In such cases, even the language of morality mostly worked in service of the emphasis on cognition and mens rea. The idea was that if a defendant had such a “total[] want of reason” as to preclude moral thinking, he could not possibly have formed the needed criminal intent. Id., at 947. Lord Chief Justice Mansfield put the point neatly in Bellingham’s Case, 1 G. Collinson, Treatise on the Law Con- cerning Idiots, Lunatics, and Other Persons Non Compotes —————— 9 Even in the face of these instructions, the dissent claims that Arnold and Ferrers actually used the moral-incapacity test. See post, at 9–11. The assertion is based on some “good and evil” language (in Ferrers, mostly from witnesses) appearing in the case reports. But scholars gen- erally agree, in line with our view, that Arnold and Ferrers “demonstrate how strictly” courts viewed “the criteria of insanity.” 1 N. Walker, Crime and Insanity in England 53 (1968) (noting that the two decisions “have often been cited” for that proposition). Kahler himself does not dispute the point; indeed, he essentially concedes our reading. Rather than try to make the decisions say something they do not, he argues only that they were “outlier[s]” and “could hardly have been less typical.” Brief for Petitioner 22, n. 5; Reply Brief 4 (internal quotation marks omitted). But that contrasting response fares no better. As even the dissent agrees, these were the “seminal” common-law decisions relating to insanity—in- deed, two of only a small number in that period to make it into official reports. Post, at 9. 18 KAHLER v. KANSAS Opinion of the Court Mentis 636 (1812) (Collinson). He instructed the jury: “If a man were deprived of all power of reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law. Such a man, so destitute of all power of judgment, could have no inten- tion at all.” Id., at 671. On that account, moral incapacity was a byproduct of the kind of cognitive breakdown that precluded finding mens rea, rather than a self-sufficient test of insanity. See also Rex v. Offord, 5 Car. & P. 168, 169, 172 Eng. Rep. 924, 925 (N. P. 1831) (“express[ing] complete accordance in the ob- servations of th[e] learned Judge” in Bellingham). Or said another way, a mentally ill defendant’s inability to distin- guish right from wrong, rather than independently produc- ing an insanity acquittal, served as a sign—almost a kind of evidence—that the defendant lacked the needed criminal intent. Other early common-law cases do not adopt the mens rea approach—but neither can they sustain Kahler’s position. Kahler relies mainly on Hadfield’s Case, 27 How. St. Tr. 1281 (1800), to show that common-law courts would acquit a mentally ill defendant who understood the nature of his act, but believed it moral. See Reply Brief 4. There, the defendant had deliberately set out to assassinate King George III on the view that doing so would bring about the Second Coming. See 27 How. St. Tr., at 1322. The judge instructed the jury that the defendant was so “deranged” as to make acquittal appropriate. Id., at 1353. Maybe, as Kahler argues, that directive stemmed from the defendant’s inability to tell right from wrong. But the judge never used that language, or stated any particular legal standard, so it is hard to know. Still other judges explained insanity to juries by throwing everything against the wall—mixing no- tions of cognitive incapacity, moral incapacity, and more, Cite as: 589 U. S. ____ (2020) 19 Opinion of the Court without trying to order, prioritize, or even distinguish among them. See, e.g., Regina v. Oxford, 9 Car. & P. 525, 545–548, 173 Eng. Rep. 941, 950 (N. P. 1840); Trial of Fran- cis Parr (Jan. 15, 1787), in 2 Old Bailey Proceedings 228– 229; Bowler’s Case, 1 Collinson 674. Those decisions treat the inability to make moral judgments more as part of an all-things-considered assessment of legal insanity, and less as its very definition. But even if some of them belong in Kahler’s corner, that would be far from enough. Taken as a whole, the common-law cases reveal no settled consensus favoring Kahler’s preferred insanity rule. And without that, they cannot support his proposed constitutional baseline. Only with M’Naghten, in 1843, did a court articulate, and momentum grow toward accepting, an insanity defense based independently on moral incapacity. See Clark, 548 U.S., at 749; Leland, 343 U.S., at 801; supra, at 2, 8. The M’Naghten test, as already described, found insanity in ei- ther of two circumstances. See supra, at 1–2. A defendant was acquitted if he “labour[ed] under such a defect of rea- son, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or, [2] if he did know it, that he did not know he was doing what was wrong.” 10 Cl. & Fin., at 210, 8 Eng. Rep., at 722 (emphasis added). That test disaggregated the concepts of cognitive and moral inca- pacity, so that each served as a stand-alone defense. And its crisp two-part formulation proved influential, not only in Great Britain but in the United States too. Over the course of the 19th century, many States adopted the test, making it the most popular one in the country. Still, Clark unhesitatingly declared: “History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle.” 548 U.S., at 749. As Clark elaborated, even M’Naghten failed to unify state insanity defenses. See 548 U.S., at 749–752. States continued to experiment with insanity rules, reflecting what one court 20 KAHLER v. KANSAS Opinion of the Court called “the infinite variety of forms [of] insanity” and the “difficult and perplexing” nature of the defense. Roberts v. State, 3 Ga. 310, 328, 332 (1847). Some States in the 1800s gravitated to the newly emergent “volitional incapacity” standard, focusing on whether the defendant could at all control his actions. Clark, 548 U.S., at 749; see, e.g., Rob- erts, 3 Ga., at 331. One court viewed that inquiry as “much more practical” than the “right and wrong test,” which it thought often “speculative and difficult of determination.” State v. Felter, 25 Iowa 67, 82, 84 (1868); see Leland, 343 U.S., at 801 (recognizing such skepticism about the moral- incapacity test); supra, at 8–9. Another prophesied that the volitional test was the one “towards which all the modern authorities in this country[ ] are gradually but surely tend- ing.” Parsons, 81 Ala., at 586, 2 So., at 859. But that test, too, failed to sweep all before it: State innovation proceeded apace. See, e.g., State v. Pike, 49 N. H. 399, 442 (1870) (ap- plying the “product” test, which excuses a defendant whose crime “was the offspring or product of mental disease”); N. D. Cent. Code Ann. §12.1–04.1–01(1)(a) (2012) (replac- ing the right-from-wrong test with an inquiry into whether the defendant’s act arose from “[a] serious distortion of [his] capacity to recognize reality”). Much as medical views of mental illness changed as time passed, so too did legal views of how to account for that illness when assigning blame. As earlier noted, even the States that adopted M’Nagh- ten soon divided on what its second prong should mean. See supra, at 2–3. Most began by asking, as Kahler does, about a defendant’s ability to grasp that his act was im- moral. See, e.g., Wright v. State, 4 Neb. 407, 409 (1876); State v. Spencer, 21 N. J. L. 196, 201 (1846). Thus, Clark labeled M’Naghten’s second prong a test of “moral capac- ity,” and invoked the oft-used phrase “telling right from wrong” (or in older language, good from evil) to describe its central inquiry. 548 U.S., at 747, 753; see supra, at 2. But Cite as: 589 U. S. ____ (2020) 21 Opinion of the Court over the years, 16 States have reoriented the test to focus on the defendant’s understanding that his act was illegal— that is, legally rather than morally “wrong.”10 They thereby excluded from the ranks of the insane those who knew an act was criminal but still thought it right. Contrary to Kahler’s (and the dissent’s) contention, that difference matters. See Reply Brief 7 (claiming that “there is little daylight between these inquiries”); post, at 17, 21 (same). The two tests will treat some, even though not all, defendants in opposite ways. And the defendants they will treat differently are exactly those Kahler (and the dissent) focus on: those who know exactly what they are doing (in- cluding that it is against the law) but believe it morally jus- tified—because, say, it is commanded by God (or in the dis- sent’s case, a dog). See Brief for Petitioner 15; post, at 20; Schmidt, 216 N.Y., at 339, 110 N. E., at 949.11 A famed —————— 10 See State v. Skaggs, 120 Ariz. 467, 472, 586 P.2d 1279, 1284 (1978); Wallace v. State, 766 So. 2d 364, 367 (Fla. App. 2000); State v. Hamann, 285 N.W.2d 180, 184 (Iowa 1979); Commonwealth v. Lawson, 475 Mass. 806, 811, 62 N.E.3d 22, 28 (2016); State v. Worlock, 117 N. J. 596, 610– 611, 569 A.2d 1314, 1322 (1990); People v. Wood, 12 N.Y. 2d 69, 76, 187 N.E.2d 116, 121–122 (1962); State v. Carreiro, 2013–Ohio–1103, 988 N.E.2d 21, 27 (App.); McElroy v. State, 242 S.W. 883, 884 (Tenn. 1922); McAfee v. State, 467 S.W.3d 622, 636 (Tex. Crim. App. 2015); State v. Crenshaw, 98 Wash. 2d 789, 794–795, 659 P.2d 488, 492–493 (1983); Ark. Code Ann. §5–2–301(6) (2017); Ill. Comp. Stat., ch. 720, §5/6–2(a) (West 2016); Ky. Rev. Stat. Ann. §504.020(1) (West 2016); Md. Crim. Proc. Code Ann. §3–109(a) (2018); Ore. Rev. Stat. §161.295(1) (2019); Vt. Stat. Ann., Tit. 13, §4801(a)(1) (2019). 11 The great judge (later Justice) whom the dissent cites to suggest there is no real difference between the legal wrong and moral wrong tests wrote a lengthy opinion whose point was the opposite. Consider a case, Judge Cardozo said: “A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice.” Peo- ple v. Schmidt, 216 N.Y. 324, 339, 110 N.E. 945, 949 (1915). If the legal wrong test were used, Judge Cardozo continued, “it would be the duty of a jury to hold her responsible for the crime.” Ibid. But not if the focus 22 KAHLER v. KANSAS Opinion of the Court theorist of criminal law put the point this way: “A kills B knowing that he is killing B, and knowing that it is illegal to kill B, but under an insane delusion that the salvation of the human race will be obtained by . . . the murder of B[.] A’s act is a crime if the word ‘wrong’ [in M’Naghten] means illegal. It is not a crime if the word wrong means morally wrong.” 2 J. Stephen, History of the Criminal Law of England, ch. 19, p. 149 (1883). So constitutionalizing the moral-incapacity standard, as Kahler requests, would require striking down not only the five state laws like Kansas’s (as the dissent at times sug- gests, see post, at 16), but 16 others as well (as the dissent eventually concedes is at least possible, see post, at 21). And with what justification? The emergence of M’Nagh- ten’s legal variant, far from raising a due process problem, merely confirms what Clark already recognized. Even after its articulation in M’Naghten (much less before), the moral- incapacity test has never commanded the day. Clark, 548 U.S., at 749.12 —————— was, as in the original M’Naghten test, on moral wrong. And that differ- ence led the New York Court of Appeals to hold that the trial court’s jury instruction was in error. See 216 N.Y., at 340, 110 N. E., at 950. The additional cases the dissent cites to downplay the distinction between moral and legal wrong in fact follow Schmidt in recognizing when they diverge. See Worlock, 117 N. J., at 611, 569 A.2d, at 1322 (explaining that “the distinction between moral and legal wrong may be critical” when, for example, a defendant “knowingly kill[s] another in obedience to a command from God”); Crenshaw, 98 Wash. 2d, at 798, 659 P.2d, at 494 (acknowledging Schmidt’s view that even when a defendant “knows that the law and society condemn [her] act,” she should not be held re- sponsible if “her free will has been subsumed by her belief in [a] deific decree”). 12 The diversity of American approaches to insanity is also evident in the States’ decisions about which kinds of mental illness can support the defense. See Clark, 548 U.S., at 750, n. 11; supra, at 3, n. 1. Some States limit the defense to those with a “severe” mental disease. See, e.g., Ala. Cite as: 589 U. S. ____ (2020) 23 Opinion of the Court Indeed, just decades ago Congress gave serious consider- ation to adopting a mens rea approach like Kansas’s as the federal insanity rule. See United States v. Pohlot, 827 F.2d 889, 899, and n. 9 (CA3 1987) (describing bipartisan sup- port for that proposal). The Department of Justice at the time favored that version of the insanity test. Perhaps more surprisingly, the American Medical Association did too. And the American Psychiatric Association took no po- sition one way or the other. Although Congress chose in the end to adhere to the M’Naghten rule, the debate over the bill itself reveals continuing division over the proper scope of the insanity defense. Nor is that surprising, given the nature of the inquiry. As the American Psychiatric Association once noted, “insanity is a matter of some uncertainty.” Insanity Defense Work Group, Statement on the Insanity Defense, 140 Am. J. Psych. 681, 685 (1983). Across both time and place, doctors and scientists have held many competing ideas about men- tal illness. And that is only the half of it. Formulating an insanity defense also involves choosing among theories of moral and legal culpability, themselves the subject of recur- rent controversy. At the juncture between those two spheres of conflict and change, small wonder there has not —————— Code §13A–3–1 (2015). Others prohibit its assertion by defendants with specific mental disorders. See, e.g., Ariz. Rev. Stat. Ann. §13–502 (2010) (“psychosexual” or “impulse control disorders”); Ore. Rev. Stat. §161.295(2) (“personality disorders”). In particular, many States follow the Model Penal Code in prohibiting psychopaths from raising the de- fense. See ALI, Model Penal Code §4.01(2), p. 163 (1985); e.g., Ind. Code §35–41–3–6(b) (2019) (“abnormality manifested only by repeated unlaw- ful or otherwise antisocial conduct”). All those limitations apply even when the defendant’s mental illness prevented him from recognizing that his crime was immoral. In that way too, many States have departed from the principle that Kahler (along with the dissent) claims the Con- stitution commands. 24 KAHLER v. KANSAS Opinion of the Court been the stasis Kahler sees—with one version of the insan- ity defense entrenched for hundreds of years. And it is not for the courts to insist on any single criterion going forward. We have made the point before, in Leland, Powell, and Clark. See supra, at 7–9. Just a brief reminder: “[F]ormulating a constitutional rule would reduce, if not eliminate, [the States’] fruitful experimentation, and freeze the developing productive dialogue between law and psy- chiatry into a rigid constitutional mold.” Powell, 392 U.S., at 536–537. Or again: In a sphere of “flux and disagree- ment,” with “fodder for reasonable debate about what the cognate legal and medical tests should be,” due process im- poses no one view of legal insanity. Clark, 548 U.S., at 752–753. Defining the precise relationship between crimi- nal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demand- ing hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law. We therefore decline to require that Kansas adopt an in- sanity test turning on a defendant’s ability to recognize that his crime was morally wrong. Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands cen- turies later. For that reason, we affirm the judgment below. It is so ordered. Cite as: 589 U. S. ____ (2020) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 18–6135 _________________ JAMES K. KAHLER, PETITIONER v.

This case is about Kansas’s treatment of a criminal de- fendant’s insanity claim. In Kansas, a defendant can in- voke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental ill- ness after conviction to justify either a reduced term of im- prisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a de- fendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when com- mitting his crime. We hold that the Clause imposes no such requirement. I A In this Court catalogued state insanity defenses, counting four “strains variously combined to yield a diversity of American stand- ards” for when to absolve mentally ill defendants of crimi- nal culpability. The first strain asks about a defendant’s 2 KAHLER v. KANSAS Opinion of the Court “cognitive capacity”—whether a mental illness left him “un- able to understand what he [was] doing” when he commit- ted a crime. at 747, The second examines his “moral capacity”—whether his illness rendered him “un- able to understand that his action [was] wrong.” Those two inquiries, explained, appeared as alternative pathways to acquittal in the landmark English ruling M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 18), as well as in many follow-on American decisions and statutes: If the defendant lacks either cognitive or moral ca- pacity, he is not criminally responsible for his behavior. Yet a third “building block[ ]” of state insanity tests, gaining popularity from the mid-19th century on, focuses on “voli- tional incapacity”—whether a defendant’s mental illness made him subject to “irresistible[] impulse[s]” or otherwise unable to “control[ ] his actions.” 548 U.S., at ; see, e.g., 2 So. 854, 866–867 (1887). And bringing up the rear, in ’s narration, the “product-of-mental-illness test” broadly con- siders whether the defendant’s criminal act stemmed from a mental 548 U.S., at –750. As explained, even that taxonomy fails to capture the field’s complexity. See Most notable here, M’Naghten’s “moral capacity” prong later produced a spinoff, adopted in many States, that does not refer to mo- rality at all. Instead of examining whether a mentally ill defendant could grasp that his act was immoral, some ju- risdictions took to asking whether the defendant could un- derstand that his act was illegal. Compare, e.g., People v. (Cardozo, J.) (asking about moral right and wrong), with, e.g., (substituting ideas of legal right and wrong). That change in legal standard matters when a mentally ill defendant knew that his act violated the law yet believed it morally justified. See, e.g., 110 N. E., at Cite as: 589 U. S. (0) 3 Opinion of the Court 9;1 Kansas law provides that “[i]t shall be a defense to a pros- ecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged.” Kan. Stat. Ann. (2018 Cum. Supp.).2 Under that statute, a defendant may introduce any evidence of any mental illness to show that he did not have the intent needed to commit the charged crime. Suppose, for example, that the defend- ant shot someone dead and goes on trial for murder. He may then offer psychiatric testimony that he did not under- stand the function of a gun or the consequences of its use— more generally stated, “the nature and quality” of his ac- tions. M’Naghten, 10 Cl. & Fin., 10, 8 Eng. Rep., at 722. And a jury crediting that testimony must acquit him. As everyone here agrees, Kansas law thus uses M’Naghten’s “cognitive capacity” prong—the inquiry into whether a mentally ill defendant could comprehend what he was do- ing when he committed a crime. See Brief for Petitioner 41; Brief for Respondent 31; Brief for United States as Amicus Curiae 18. If the defendant had no such capacity, he could not form the requisite intent—and thus is not criminally responsible. At the same time, the Kansas statute provides that “[m]ental disease or defect is not otherwise a defense.” 5209. In other words, Kansas does not recognize any addi- tional way that mental illness can produce an acquittal.3 —————— 1 Another complicating factor in ’s classification scheme is that States “limit, in varying degrees, which sorts of mental illness” can sup- port an insanity claim. So even two States using the same test for judging culpability may apply it to differently sized sets of offenders. See infra, 1, n. 11. 2 At the time of the crime in this case, a materially identical provision was codified at (2007). 3 Four other States similarly exonerate a mentally ill defendant only when he cannot understand the nature of his actions and so cannot form the requisite mens rea. See (a), 12.47.020 4 KAHLER v. KANSAS Opinion of the Court Most important for this case, a defendant’s moral incapac- ity cannot exonerate him, as it would if Kansas had adopted both original prongs of M’Naghten. Assume, for example, that a defendant killed someone because of an “insane de- lusion that God ha[d] ordained the sacrifice.” 216 N.Y., at The defendant knew what he was doing (killing another person), but he could not tell moral right from wrong; indeed, he thought the murder morally justified. In many States, that fact would preclude a criminal conviction, although it would almost always lead to commitment in a mental health facility. In Kansas, by contrast, evidence of a mentally ill defendant’s moral inca- pacity—or indeed, of anything except his cognitive inability to form the needed mens rea—can play no role in determin- ing guilt. That partly closed-door policy changes once a verdict is in. At the sentencing phase, a Kansas defendant has wide latitude to raise his mental illness as a reason to judge him not fully culpable and so to lessen his punishment. See §65(c)(1)(C), 21–6625(a). He may present evidence (of the kind M’Naghten deemed relevant) that his dis- ease made him unable to understand his act’s moral wrong- ness—as in the example just given of religious delusion. See 6625(a). Or he may try to show (in line with M’Naghten’s spinoff ) that the illness prevented him from “appreciat[ing] the [conduct’s] criminality.” 6625(a)(6). Or again, he may offer testimony (here invoking volitional incapacity) that he simply could not “conform [his] conduct” to legal restraints. Kansas sentencing law thus provides for an individualized determination of how mental illness, in any or all of its aspects, affects cul- pability. And the same kind of evidence can persuade a court to place a defendant who needs psychiatric care in a —————— (2018); –207(1), (3) ; – 14–102 (2019); Utah Code (2017). Cite as: 589 U. S. (0) 5 Opinion of the Court mental health facility rather than a prison. See In that way, a defendant in Kansas lacking, say, moral ca- pacity may wind up in the same kind of institution as a like defendant in a State that would bar his conviction. B This case arises from a terrible crime. In early 2009, Ka- ren Kahler filed for divorce from James Kahler and moved out of their home with their two teenage daughters and 9-year-old son. Over the following months, James Kahler became more and more distraught. On Thanksgiving week- end, he drove to the home of Karen’s grandmother, where he knew his family was staying. Kahler entered through the back door and saw Karen and his son. He shot Karen twice, while allowing his son to flee the house. He then moved through the residence, shooting Karen’s grand- mother and each of his daughters in turn. All four of his victims died. Kahler surrendered to the police the next day and was charged with capital murder. Before trial, Kahler filed a motion arguing that Kansas’s treatment of insanity claims violates the Fourteenth Amendment’s Due Process Clause. Kansas, he asserted, had “unconstitutionally abolished the insanity defense” by allowing the conviction of a mentally ill person “who cannot tell the difference between right and wrong.” App. 11–12. The trial court denied the motion, leaving Kahler to at- tempt to show through psychiatric and other testimony that severe depression had prevented him from forming the in- tent to kill. See ; The jury convicted Kahler of capital murder. At the penalty phase, the court permitted Kahler to offer additional evidence of his mental illness and to argue in whatever way he liked that it should mitigate his sentence. The jury still decided to impose the death penalty. Kahler appealed, again challenging the constitutionality 6 KAHLER v. KANSAS Opinion of the Court of Kansas’s approach to insanity claims. The Kansas Su- preme Court rejected his argument, relying on an earlier precedential decision. See 400–401, 410 P.3d 105, 124–125 (2018) ). There, the court denied that any single version of the insanity defense is so “ingrained in our legal system” as to count as “fundamental.” at The court thus found that “[d]ue pro- cess does not mandate that a State adopt a particular in- sanity test.” Kahler then asked this Court to decide whether the Due Process Clause requires States to provide an insanity de- fense that acquits a defendant who could not “distinguish right from wrong” when committing his crime—or, other- wise put, whether that Clause requires States to adopt the moral-incapacity test from M’Naghten. Pet. for Cert. 18. We granted certiorari, 586 U. S. (2019), and now hold it does not.4 II A A challenge like Kahler’s must surmount a high bar. Un- der well-settled precedent, a state rule about criminal lia- bility—laying out either the elements of or the defenses to a crime—violates due process only if it “offends some prin- ciple of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (internal quotation marks omitted). Our primary guide in applying that standard is “historical practice.” (1996) And in assessing that practice, —————— 4 Kahler also asked us to decide whether the Eighth Amendment re- quires that States make available the moral-incapacity defense. See Pet. for Cert. 18. But that claim is not properly before us. Kahler did not raise the argument below, and the Kansas courts therefore did not ad- dress it. Cite as: 589 U. S. (0) 7 Opinion of the Court we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g., at 44–45; 2 U.S. 197, The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choos- ing another. An affirmative answer, though not unheard of, is rare. See, e.g., (“[T]he concep- tualization of criminal offenses” is mostly left to the States). In this Court ex- plained why. There, Texas declined to recognize “chronic alcoholism” as a defense to the crime of public drunkenness. The Court upheld that deci- sion, emphasizing the paramount role of the States in set- ting “standards of criminal responsibility.” In refusing to impose “a constitutional doctrine” defining those standards, the Court invoked the many “interlocking and overlapping concepts” that the law uses to assess when a person should be held criminally accountable for “his anti- social deeds.” 35–536. “The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress”—the Court counted them off—reflect both the “evolving aims of the criminal law” and the “changing religious, moral, phil- osophical, and medical views of the nature of man.” at 536. Or said a bit differently, crafting those doctrines in- volves balancing and rebalancing over time complex and oft-competing ideas about “social policy” and “moral culpa- bility”—about the criminal law’s “practical effectiveness” and its “ethical foundations.” (Black, J., concurring). That “constantly shifting adjustment” could not proceed in the face of rigid “[c]onstitution[al] for- mulas.” –537 Within broad limits, thus concluded, “doctrine[s] of criminal re- sponsibility” must remain “the province of the States.” 34, 536. 8 KAHLER v. KANSAS Opinion of the Court Nowhere has the Court hewed more closely to that view than in addressing the contours of the insanity defense. Here, uncertainties about the human mind loom large. See, e.g., (“[P]sychia- trists disagree widely and frequently on what constitutes mental illness, on [proper] diagnos[es, and] on cure and treatment”). Even as some puzzles get resolved, others emerge. And those perennial gaps in knowledge intersect with differing opinions about how far, and in what ways, mental illness should excuse criminal conduct. See 548 U.S., at –752 (canvassing how those competing views produced a wealth of insanity tests); at 1–2. “This whole problem,” we have noted, “has evoked wide dis- agreement.” 3 U.S., On such unsettled ground, we have hesitated to reduce “experimentation, and freeze [the] dialogue between law and psychiatry into a rigid constitutional mold.” –537. Indeed, while addressing the demand for an alcoholism de- fense in the Court pronounced—as something close to self-evident—that “[n]othing could be less fruitful” than to define a specific “insanity test in constitutional terms.” And twice before we have declined to do so. In v. Oregon, a criminal defendant challenged as a violation of due process the State’s use of the moral-incapacity test of insan- ity—the very test Kahler now asks us to require. See 3 U.S., at 800–801. According to the defendant, Oregon in- stead had to adopt the volitional-incapacity (or irresistible- impulse) test to comply with the Constitution. See ; We rejected that argument. “[P]sychiatry,” we first noted, “has made tremendous strides since [the moral- incapacity] test was laid down in M’Naghten’s Case,” imply- ing that the test seemed a tad 3 U.S., at 800– 801. But still, we reasoned, “the progress of science has not reached a point where its learning” would demand “elimi- nat[ing] the right and wrong test from [the] criminal law.” Cite as: 589 U. S. (0) 9 Opinion of the Court And anyway, we continued, the “choice of a test of legal sanity involves not only scientific knowledge but questions of basic policy” about when mental illness should absolve someone of “criminal responsibility.” The matter was thus best left to each State to decide on its own. The dissent agreed (while parting from the majority on an- other ground): “[I]t would be indefensible to impose upon the States[ ] one test rather than another for determining criminal culpability” for the mentally ill, “and thereby to displace a State’s own choice.” (opinion of Frank- furter, J.). A half-century later, we reasoned similarly in There, the defendant objected to Arizona’s decision to dis- card the cognitive-incapacity prong of M’Naghten and leave in place only the moral-incapacity one—essentially the flip- side of what Kansas has done. Again, we saw no due pro- cess problem. Many States, we acknowledged, allowed a defendant to show insanity through either prong of M’Naghten. See But we denied that this approach “represents the minimum that a government must provide.” In so doing, we invoked the States’ traditional “capacity to define crimes and defenses,” and noted how views of mental illness had been particularly “subject to flux and disagreement.” at 752. And then we surveyed the disparate ways that state laws had historically excused criminal conduct because of mental dis- ease—those “strains variously combined to yield a diversity of American standards.” See at –752; at 1–2. The takeaway was “clear”: A State’s “insanity rule[ ] is sub- stantially open to state choice.” Reiterating ’s statement, held that “no partic- ular” insanity test serves as “a baseline for due process.” Or said just a bit differently, that “due process imposes no single canonical formulation of legal in- sanity.” 10 KAHLER v. KANSAS Opinion of the Court B Yet Kahler maintains that Kansas’s treatment of insan- ity fails to satisfy due process. He sometimes makes his argument in the broadest of strokes, as he did before trial. See Kansas, he then contends, has altogether “abolished the insanity defense,” in disregard of hundreds of years of historical practice. Brief for Petitioner 39. His central claim, though, is more confined. It is that Kansas has impermissibly jettisoned the moral-incapacity test for insanity. See As earlier noted, both and described that test as coming from M’Naghten. See 548 U.S., at ; 3 U. S., ; 8. But according to Kahler (and the dissent), the moral-incapacity inquiry emerged centuries before that decision, thus form- ing part of the English common-law heritage this country inherited. See Brief for Petitioner 21, 42; post, at 4–14 (opinion of BREYER, J.). And the test, he claims, served for all that time—and continuing into the present—as the touchstone of legal insanity: If a defendant could not under- stand that his act was morally wrong, then he could not be found criminally liable. See Brief for Petitioner 20–23; see also post, at 15. So Kahler concludes that the moral- incapacity standard is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 3 U.S., at ; see In essence—and contra —that test is the “single canoni- cal formulation of legal insanity” and thus the irreducible “baseline for due process.” –753; see at 9.5 —————— 5 Although the dissent at times claims to the contrary, its argument is the same. Given the clear direction of our precedent, the dissent must purport to grant the States “leeway” in defining legal insanity. Post, at 1. But the entirety of the dissent’s historical analysis focuses on the moral-incapacity standard—attempting to show, just as Kahler does, that it both preceded and succeeded M’Naghten. See post, at 4–17. And in line with that narration, the dissent insists on moral understanding Cite as: 589 U. S. (0) 11 Opinion of the Court One point, first, of agreement: Kahler is right that for hundreds of years jurists and judges have recognized insan- ity (however defined) as relieving responsibility for a crime. “In criminal cases therefore,” Sir William Blackstone wrote, “lunatics are not chargeable for their own acts, if committed when under these incapacities.” 4 Commentaries on the Laws of England 24 (1769). Sir Edward Coke even earlier explained that in criminal cases, “the act and wrong of a mad man shall not be imputed to him.” 2 Institutes of the Laws of England p. 247b (16) (Coke). And so too Henry de Bracton thought that a “madman” could no sooner be found criminally liable than a child. 2 Bracton on Laws and Customs of England 384 (Brac- ton). That principle of non-culpability appeared in case af- ter case involving allegedly insane defendants, on both sides of the Atlantic. “The defense of insanity[] is a defense for all crimes[,] from the highest to the lowest,” said the Court in Old Bailey. Trial of Samuel Burt (July 19, 1786), in 6 Proceedings in the Old Bailey 874 (E. Hodgson ed. 1788) (Old Bailey Proceedings). Repeated Justice Story, when riding circuit: “In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibil- ity.” United (No. 14,993) (CC Mass. 18); see also, e.g., 2 Ala. (1) (“If the prisoner was insane, he was not an account- able being”); (“[P]erfect madness” will “free a man from punishment for crime”). We have not found a single case to the contrary. —————— as the indispensable criterion of legal sanity—the sine qua non of crimi- nal responsibility. See, e.g., post, at 1, 3–4, 8–9, 18–21. Indeed, the dis- sent offers only one way the States have actual “leeway” to change their insanity rules: They can “expand upon M’Naghten’s principles” by find- ing that even some who have moral capacity are insane. Post, 2. But that is just to say that moral capacity is the constitutional floor—again, exactly what Kahler argues. 12 KAHLER v. KANSAS Opinion of the Court But neither do we think Kansas departs from that broad principle. First, Kansas has an insanity defense negating criminal liability—even though not the type Kahler de- mands. As noted earlier, Kansas law provides that it is “a defense to a prosecution” that “the defendant, as a result of mental disease or defect, lacked the culpable mental state required” for a crime. ; see That pro- vision enables a defendant to present psychiatric and other evidence of mental illness to defend himself against a crim- inal charge. More specifically, the defendant can use that evidence to show that his illness left him without the cogni- tive capacity to form the requisite intent. See Recall that such a defense was exactly what the defendant in wanted, in preference to Arizona’s moral-incapacity defense: His (unsuccessful) appeal rested on the trial court’s exclusion of psychiatric testimony to show that he lacked the relevant mens rea. See –747; at 9. Here, Kahler could do what could not—try to show through such testimony that he had no intent to kill. Of course, Kahler would have preferred Arizona’s kind of in- sanity defense (just as would have liked Kansas’s). But that does not mean that Kansas (any more than Ari- zona) failed to offer any insanity defense at all. Second, and significantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. See §65(c)(1)(C), 21–6625(a); at 4. A mentally ill defendant may argue there that he is not blameworthy because he could not tell the difference be- tween right and wrong. Or, because he did not know his conduct broke the law. Or, because he could not control his behavior. Or, because of anything else. In other words, any manifestation of mental illness that Kansas’s guilt-phase insanity defense disregards—including the moral incapac- ity Kahler highlights—can come in later to mitigate culpa- bility and lessen punishment. And that same kind of evi- dence can persuade a judge to replace any prison term with Cite as: 589 U. S. (0) 13 Opinion of the Court commitment to a mental health facility. See §22–30; su- pra, at 4–5. So as noted above, a defendant arguing moral incapacity may well receive the same treatment in Kansas as in States that would acquit—and, almost certainly, com- mit—him for that reason. See at 4–5. In sum, Kan- sas does not bar, but only channels to sentencing, the men- tal health evidence that falls outside its intent-based insanity defense. When combined with Kansas’s allowance of mental health evidence to show a defendant’s inability to form criminal intent, that sentencing regime defeats Kahler’s charge that the State has “abolish[ed] the insanity defense entirely.”6 Brief for Petitioner 39. So Kahler can prevail here only if he can show (again, contra ) that due process demands a specific test of legal insanity—namely, whether mental illness prevented a defendant from understanding his act as immoral. Kan- sas, as we have explained, does not use that type of insanity rule. See –4. If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder mor- ally justified. In Kansas’s judgment, that delusion does not make an intentional killer entirely blameless. See Brief for Respondent 40. Rather than eliminate, it only lessens the defendant’s moral culpability. See And sentencing is the appropriate place to consider mitigation: The deci- sionmaker there can make a nuanced evaluation of blame, rather than choose, as a trial jury must, between all and nothing. See In any event, so Kansas thinks.7 Those —————— 6 We here conclude only that Kansas’s scheme does not abolish the in- sanity defense. We say nothing, one way or the other, about whether any other scheme might do so. 7 The dissent is therefore wrong to suggest that Kansas’s law has be- come untethered from moral judgments about culpability. See post, at 1, 3, 16–22. No doubt, Kansas’s moral judgments differ from the dissent’s. Again, Kansas believes that an intentional killer is not wholly blameless, even if, for example, he thought his actions commanded by God. The dissent, in contrast, considers Kansas’s view benighted (as maybe some 14 KAHLER v. KANSAS Opinion of the Court views are contested and contestable; other States—many others—have made a different choice. But Kahler must show more than that. He must show that adopting the moral-incapacity version of the insanity rule is not a choice at all—because, again, that version is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” 3 U.S., at And he cannot. The historical record is, on any fair reading, complex—even messy. As we will detail, it reveals early versions of not only Kahler’s proposed standard but also Kansas’s alternative. Early commentators on the common law proposed vari- ous formulations of the insanity defense, with some favor- ing a morality inquiry and others a mens rea approach. Kahler cites William Lambard’s 16th-century treatise de- fining a “mad man” as one who “hath no knowledge of good nor evil” (the right and wrong of the day). Eirenarcha, ch. 21, p. 218 (15). He likewise points to William Hawkins’s statement, over a hundred years later, that a “lunatick[ ]” is not punishable because “under a natural disability of dis- tinguishing between good and evil.” 1 Pleas of the Crown p. 2 (1716) (capitalization omitted). Both true enough. But other early versions of the insanity test—and from a more famous trio of jurists—demanded the kind of cognitive —————— in the majority do too). But that is not a dispute, as the dissent suggests, about whether morality should play a role in assigning legal responsibil- ity. It is instead a disagreement about what morality entails—that is, about when a defendant is morally culpable for an act like murder. See 465–471, (ac- cepting Kansas’s view that “moral blameworthiness” is linked to a de- fendant’s intent to kill, rather than to his ability to tell right from wrong). And we have made clear, from to to that courts do not get to make such judgments. See at 7–9. Instead, the States have broad discretion to decide who counts as blameworthy, and to weigh that along with other factors in defining the elements of, and defenses to, crimes. Cite as: 589 U. S. (0) 15 Opinion of the Court impairment that prevented a defendant from understand- ing the nature of his acts, and thus intending his crime. Henry de Bracton’s 13th-century treatise gave rise to what became known as the “wild beast” test. See J. Biggs, The Guilty Mind 82 (1955). Used for hundreds of years, it lik- ened a “madman” to an “animal[ ] which lack[s] reason” and so could not have “the intention to injure.” Bracton 384; see (A “madman” cannot commit a crime because “[i]t is will and purpose which mark” misdeeds). Sir Edward Coke similarly linked the definition of insanity to a defendant’s inability to form criminal intent. He described a legally in- sane person in 16 as so utterly “without his mind or dis- cretion” that he could not have the needed mens rea. 2 Coke 47b. So too Lord Matthew Hale a century later. He explained that insanity involves “a total alienation of the mind or perfect madness,” such that a defendant could not act “animo felonico,” meaning with felonious intent. 1 Pleas of the Crown, ch. 4, pp. 30, 37 (1736); see 7 (“[F]or being under a full alienation of mind, he acts not per electionem or intentionem [by choice or intent]”).8 —————— 8 The dissent tries to recruit these three jurists to the side of the moral- incapacity test, see post, –7, but cannot succeed. Even the carefully curated passages the dissent quotes focus on cognitive capability rather than moral judgment. See, e.g., post, –6 (asking whether a defendant had “sense and reason” or “understanding and liberty of will”). In so doing, they refer to the defendant’s ability to form the requisite mens rea, or felonious intent. See ; at 1–3. The dissent still insists all is not lost because (it says) mens rea itself hinged at common law on a defendant’s “moral understanding.” Post, at 8–9. Here, the dissent infers from the use of “good-from-evil” language in various common-law treatises and cases that moral blameworthiness must have defined the mens rea See But to begin with— and to repeat the point made in the text—the most influential treatises used little of that language, emphasizing instead the need for a defend- ant to intend his act in the ordinary sense of the term. And as we will explain, the joint presence of references to mens rea and moral under- standing in other common-law sources involving insanity does not show that most jurists saw the two concepts as one and the same. See infra, 16 KAHLER v. KANSAS Opinion of the Court Quite a few of the old common-law cases similarly stressed the issue of cognitive capacity. To be sure, even these cases included some references to the ability to tell right from wrong (and the dissent eagerly cherry-picks every one of them). But the decisions’ overall focus was less on whether a defendant thought his act moral than on whether he had the ability to do much thinking at all. In the canonical case of Rex v. Arnold, 16 How. St. Tr. 695 (1724), for example, the jury charge descended straight from Bracton: “[I]t is not every kind of frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as is to be exempted from punish- ment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast.” –765. And the court offered an accompanying test linking that lack of reason to mens rea: If a man is “deprived of his rea- son, and consequently of his intention, he cannot be guilty.” ; see (defining a “madman” as a “person that hath no design”); see also Trial of William Walker (Apr. 21, 1784), in 4 Old Bailey Proceedings 544, 547 (asking whether the defendant had a “distemper of mind which had deprived him of the use of his reason” or instead whether “he knew what he was doing [and] meant to do it”); Beverley’s Case, 4 Co. Rep. 123b, 124b, 76 Eng. Rep. 1118, 1121 (K. B. 1603) —————— –19. Some may well have viewed mens rea through a moral prism; but others emphasized cognitive understanding in using that term; and still others combined the moral and cognitive in diverse ways. Which is to say that the record is far more complicated than the dissent lets on, with jurists invoking, both within particular sources and across all of them, a variety of ways to resolve insanity claims. And under our long- established precedent, that motley sort of history cannot provide the ba- sis for a successful due process claim. Cite as: 589 U. S. (0) 17 Opinion of the Court (asking whether a man “is deprived of reason and under- standing” and so “cannot have a felonious intent”). The House of Lords used much the same standard in Rex v. Lord Ferrers, 19 How. St. Tr. 886 (1760), when sitting in judg- ment on one of its members. There, the Solicitor General told the Lords to address “the capacity and intention of the noble prisoner.” Relying heavily on Hale’s trea- tise, he defined the legally insane as suffering from an “al- ienation of mind” and a “total[ ] want of reason.” at And in recapping the evidence on that issue, he asked about the defendant’s intention: “Did [Ferrers] proceed with de- liberation? Did he know the consequences” of his act?9 In such cases, even the language of morality mostly worked in service of the emphasis on cognition and mens rea. The idea was that if a defendant had such a “total[] want of reason” as to preclude moral thinking, he could not possibly have formed the needed criminal intent. at Lord Chief Justice Mansfield put the point neatly in Bellingham’s Case, 1 G. Collinson, Treatise on the Law Con- cerning Idiots, Lunatics, and Other Persons Non Compotes —————— 9 Even in the face of these instructions, the dissent claims that Arnold and Ferrers actually used the moral-incapacity test. See post, at 9–11. The assertion is based on some “good and evil” language (in Ferrers, mostly from witnesses) appearing in the case reports. But scholars gen- erally agree, in line with our view, that Arnold and Ferrers “demonstrate how strictly” courts viewed “the criteria of insanity.” 1 N. Walker, Crime and Insanity in England 53 (noting that the two decisions “have often been cited” for that proposition). Kahler himself does not dispute the point; indeed, he essentially concedes our reading. Rather than try to make the decisions say something they do not, he argues only that they were “outlier[s]” and “could hardly have been less typical.” Brief for Petitioner 22, n. 5; Reply Brief 4 (internal quotation marks omitted). But that contrasting response fares no better. As even the dissent agrees, these were the “seminal” common-law decisions relating to insanity—in- deed, two of only a small number in that period to make it into official reports. Post, at 9. 18 KAHLER v. KANSAS Opinion of the Court Mentis (12) (Collinson). He instructed the jury: “If a man were deprived of all power of reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law. Such a man, so destitute of all power of judgment, could have no inten- tion at all.” 71. On that account, moral incapacity was a byproduct of the kind of cognitive breakdown that precluded finding mens rea, rather than a self-sufficient test of insanity. See also Rex v. Offord, 5 Car. & P. 168, 169, 172 Eng. Rep. 924, 925 (N. P. 1) (“express[ing] complete accordance in the ob- servations of th[e] learned Judge” in Bellingham). Or said another way, a mentally ill defendant’s inability to distin- guish right from wrong, rather than independently produc- ing an insanity acquittal, served as a sign—almost a kind of evidence—that the defendant lacked the needed criminal intent. Other early common-law cases do not adopt the mens rea approach—but neither can they sustain Kahler’s position. Kahler relies mainly on Hadfield’s Case, 27 How. St. Tr. 12 (1800), to show that common-law courts would acquit a mentally ill defendant who understood the nature of his act, but believed it moral. See Reply Brief 4. There, the defendant had deliberately set out to assassinate King George III on the view that doing so would bring about the Second Coming. See 27 How. St. Tr., at The judge instructed the jury that the defendant was so “deranged” as to make acquittal appropriate. Maybe, as Kahler argues, that directive stemmed from the defendant’s inability to tell right from wrong. But the judge never used that language, or stated any particular legal standard, so it is hard to know. Still other judges explained insanity to juries by throwing everything against the wall—mixing no- tions of cognitive incapacity, moral incapacity, and more, Cite as: 589 U. S. (0) 19 Opinion of the Court without trying to order, prioritize, or even distinguish among them. See, e.g., Regina v. Oxford, 9 Car. & P. 525, 545–548, 173 Eng. Rep. 941, 950 (N. P. 0); Trial of Fran- cis Parr (Jan. 15, 1787), in 2 Old Bailey Proceedings 2– 229; Bowler’s Case, 1 Collinson 674. Those decisions treat the inability to make moral judgments more as part of an all-things-considered assessment of legal insanity, and less as its very definition. But even if some of them belong in Kahler’s corner, that would be far from enough. Taken as a whole, the common-law cases reveal no settled consensus favoring Kahler’s preferred insanity rule. And without that, they cannot support his proposed constitutional baseline. Only with M’Naghten, in 18, did a court articulate, and momentum grow toward accepting, an insanity defense based independently on moral incapacity. See 548 U.S., at ; 3 U.S., ; 8. The M’Naghten test, as already described, found insanity in ei- ther of two circumstances. See at 1–2. A defendant was acquitted if he “labour[ed] under such a defect of rea- son, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or, [2] if he did know it, that he did not know he was doing what was wrong.” 10 Cl. & Fin., 10, 8 Eng. Rep., at 722 (emphasis added). That test disaggregated the concepts of cognitive and moral inca- pacity, so that each served as a stand-alone defense. And its crisp two-part formulation proved influential, not only in Great Britain but in the United States too. Over the course of the 19th century, many States adopted the test, making it the most popular one in the country. Still, unhesitatingly declared: “History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle.” 548 U.S., at As elaborated, even M’Naghten failed to unify state insanity defenses. See 548 U.S., at –752. States continued to experiment with insanity rules, reflecting what one court 20 KAHLER v. KANSAS Opinion of the Court called “the infinite variety of forms [of] insanity” and the “difficult and perplexing” nature of the defense. Rob v. State, Some States in the 1800s gravitated to the newly emergent “volitional incapacity” standard, focusing on whether the defendant could at all control his actions. 548 U.S., at ; see, e.g., Rob- 3 Ga., 31. One court viewed that inquiry as “much more practical” than the “right and wrong test,” which it thought often “speculative and difficult of determination.” ; see 3 U.S., (recognizing such skepticism about the moral- incapacity test); at 8–9. Another prophesied that the volitional test was the one “towards which all the modern authorities in this country[ ] are gradually but surely tend- ing.” Ala., 86, But that test, too, failed to sweep all before it: State innovation proceeded apace. See, e.g., State v. Pike, N. H. 399, 442 (1870) (ap- plying the “product” test, which excuses a defendant whose crime “was the offspring or product of mental disease”); N. D. Cent. Code Ann. (2012) (replac- ing the right-from-wrong test with an inquiry into whether the defendant’s act arose from “[a] serious distortion of [his] capacity to recognize reality”). Much as medical views of mental illness changed as time passed, so too did legal views of how to account for that illness when assigning blame. As earlier noted, even the States that adopted M’Nagh- ten soon divided on what its second prong should mean. See –3. Most began by asking, as Kahler does, about a defendant’s ability to grasp that his act was im- moral. See, e.g., ; State v. Spencer, 21 N. J. L. 196, 201 (6). Thus, labeled M’Naghten’s second prong a test of “moral capac- ity,” and invoked the oft-used phrase “telling right from wrong” (or in older language, good from evil) to describe its central 753; see But Cite as: 589 U. S. (0) 21 Opinion of the Court over the years, 16 States have reoriented the test to focus on the defendant’s understanding that his act was illegal— that is, legally rather than morally “wrong.”10 They thereby excluded from the ranks of the insane those who knew an act was criminal but still thought it right. Contrary to Kahler’s (and the dissent’s) contention, that difference matters. See Reply Brief 7 (claiming that “there is little daylight between these inquiries”); post, at 17, 21 (same). The two tests will treat some, even though not all, defendants in opposite ways. And the defendants they will treat differently are exactly those Kahler (and the dissent) focus on: those who know exactly what they are doing (in- cluding that it is against the law) but believe it morally jus- tified—because, say, it is commanded by God (or in the dis- sent’s case, a dog). See Brief for Petitioner 15; post, 0;11 A famed —————— 10 See ; ; ; Commonwealth v. Lawson, 475 Mass. 806, 1, ; ; N.E.2d 116, 121–122 (1962); State v. Carreiro, 2013–Ohio–1103, 988 N.E.2d 21, 27 (App.); ; ; State v. 794–795, 2–3 ; –2–301(6) (2017); Ill. Comp. Stat., ch. 720, ; (1) ; Md. Crim. Proc. Code Ann. (2018); Ore. Rev. Stat. (2019); Vt. Stat. Ann., Tit. 13, (2019). 11 The great judge (later Justice) whom the dissent cites to suggest there is no real difference between the legal wrong and moral wrong tests wrote a lengthy opinion whose point was the opposite. Consider a case, Judge Cardozo said: “A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice.” Peo- ple v. 9 If the legal wrong test were used, Judge Cardozo continued, “it would be the duty of a jury to hold her responsible for the crime.” But not if the focus 22 KAHLER v. KANSAS Opinion of the Court theorist of criminal law put the point this way: “A kills B knowing that he is killing B, and knowing that it is illegal to kill B, but under an insane delusion that the salvation of the human race will be obtained by the murder of B[.] A’s act is a crime if the word ‘wrong’ [in M’Naghten] means illegal. It is not a crime if the word wrong means morally wrong.” 2 J. Stephen, History of the Criminal Law of England, ch. 19, p. 1 (1883). So constitutionalizing the moral-incapacity standard, as Kahler requests, would require striking down not only the five state laws like Kansas’s (as the dissent at times sug- gests, see post, ), but 16 others as well (as the dissent eventually concedes is at least possible, see post, 1). And with what justification? The emergence of M’Nagh- ten’s legal variant, far from raising a due process problem, merely confirms what already recognized. Even after its articulation in M’Naghten (much less before), the moral- incapacity test has never commanded the day. 548 U.S., at12 —————— was, as in the original M’Naghten test, on moral wrong. And that differ- ence led the New York Court of Appeals to hold that the trial court’s jury instruction was in error. See 216 N.Y., 40, The additional cases the dissent cites to downplay the distinction between moral and legal wrong in fact follow in recognizing when they diverge. See Worlock, 117 N. J., 11, 569 A.2d, at (explaining that “the distinction between moral and legal wrong may be critical” when, for example, a defendant “knowingly kill[s] another in obedience to a command from God”); 98 Wash. 2d, at 659 P.2d, at 4 (acknowledging ’s view that even when a defendant “knows that the law and society condemn [her] act,” she should not be held re- sponsible if “her free will has been subsumed by her belief in [a] deific decree”). 12 The diversity of American approaches to insanity is also evident in the States’ decisions about which kinds of mental illness can support the defense. See 548 U.S., ; n. 1. Some States limit the defense to those with a “severe” mental See, e.g., Ala. Cite as: 589 U. S. (0) 23 Opinion of the Court Indeed, just decades ago Congress gave serious consider- ation to adopting a mens rea approach like Kansas’s as the federal insanity rule. See United States v. Pohlot, 827 F.2d 889, 899, and n. 9 (CA3 1987) (describing bipartisan sup- port for that proposal). The Department of Justice at the time favored that version of the insanity test. Perhaps more surprisingly, the American Medical Association did too. And the American Psychiatric Association took no po- sition one way or the other. Although Congress chose in the end to adhere to the M’Naghten rule, the debate over the bill itself reveals continuing division over the proper scope of the insanity defense. Nor is that surprising, given the nature of the As the American Psychiatric Association once noted, “insanity is a matter of some uncertainty.” Insanity Defense Work Group, Statement on the Insanity Defense, 140 Am. J. Psych. 6, 685 Across both time and place, doctors and scientists have held many competing ideas about men- tal illness. And that is only the half of it. Formulating an insanity defense also involves choosing among theories of moral and legal culpability, themselves the subject of recur- rent controversy. At the juncture between those two spheres of conflict and change, small wonder there has not —————— Code Others prohibit its assertion by defendants with specific mental disorders. See, e.g., –502 (2010) (“psychosexual” or “impulse control disorders”); Ore. Rev. Stat. (“personality disorders”). In particular, many States follow the Model Penal Code in prohibiting psychopaths from raising the de- fense. See ALI, Model Penal Code p. 163 ; e.g., Ind. Code (2019) (“abnormality manifested only by repeated unlaw- ful or otherwise antisocial conduct”). All those limitations apply even when the defendant’s mental illness prevented him from recognizing that his crime was immoral. In that way too, many States have departed from the principle that Kahler (along with the dissent) claims the Con- stitution commands. 24 KAHLER v. KANSAS Opinion of the Court been the stasis Kahler sees—with one version of the insan- ity defense entrenched for hundreds of years. And it is not for the courts to insist on any single criterion going forward. We have made the point before, in and See at 7–9. Just a brief reminder: “[F]ormulating a constitutional rule would reduce, if not eliminate, [the States’] fruitful experimentation, and freeze the developing productive dialogue between law and psy- chiatry into a rigid constitutional mold.” 392 U.S., –537. Or again: In a sphere of “flux and disagree- ment,” with “fodder for reasonable debate about what the cognate legal and medical tests should be,” due process im- poses no one view of legal insanity. 548 U.S., at 752–753. Defining the precise relationship between crimi- nal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demand- ing hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law. We therefore decline to require that Kansas adopt an in- sanity test turning on a defendant’s ability to recognize that his crime was morally wrong. Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands cen- turies later. For that reason, we affirm the judgment below. It is so ordered. Cite as: 589 U. S. (0) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 18–6 JAMES K. KAHLER, PETITIONER v.

Justice Breyer

dissenting

Kahler v. Kansas

2020-03-23

https://www.courtlistener.com/opinion/4738309/kahler-v-kansas/

https://www.courtlistener.com/api/rest/v3/clusters/4738309/

Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal pro- cedures, including leeway to provide different definitions and standards related to the defense of insanity. But here, Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental ill- ness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy. Seven hundred years of Anglo-American legal history, together with basic princi- ples long inherent in the nature of the criminal law itself, convince me that Kansas’ law “ ‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our peo- ple as to be ranked as fundamental.’ ” Leland v. Oregon, 343 U.S. 790, 798 (1952) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). I A much-simplified example will help the reader under- stand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecu- tion One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of se- vere mental illness, he thought the victim was a dog. Pros- ecution Two is similar but for one thing: The evidence at 2 KAHLER v. KANSAS BREYER, J., dissenting trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kan- sas’ rule, it can convict the second but not the first. To put the matter in more explicitly legal terms, consider the most famous statement of the traditional insanity de- fense, that contained in M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843). Lord Chief Justice Tin- dal, speaking for a majority of the judges of the common- law courts, described the insanity defense as follows: “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the commit- ting of the act, the party accused was labouring under such a defect of reason, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or, [2] if he did know it, that he did not know he was doing what was wrong.” Id., at 210, 8 Eng. Rep., at 722. The first prong (sometimes referred to as “cognitive inca- pacity”) asks whether the defendant knew what he was do- ing. This prong corresponds roughly to the modern concept of mens rea for many offenses. The second (sometimes re- ferred to as “moral incapacity”) goes further. It asks, even if the defendant knew what he was doing, did he have the capacity to know that it was wrong? Applying this test to my example, a court would find that both defendants suc- cessfully established an insanity defense. Prosecution One (he thought the victim was a dog) falls within M’Naghten’s first prong, while Prosecution Two (he thought the dog or- dered him to do it) falls within its second prong. In Kansas’ early years of statehood, its courts recognized the M’Naghten test as the “cardinal rule of responsibility in the criminal law.” State v. Nixon, 32 Kan. 205, 206, 4 P. 159, 160 (1884). Kansas “steadfastly adhered to that Cite as: 589 U. S. ____ (2020) 3 BREYER, J., dissenting test” for more than a century. State v. Baker, 249 Kan. 431, 449–450, 819 P.2d 1173, 1187 (1991). But in 1995, Kansas “ ‘legislatively abolish[ed] the insanity defense.’ ” State v. Jorrick, 269 Kan. 72, 82, 4 P.3d 610, 617 (2000) (quoting Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J. L. & Pub. Pol’y 253, 254–255 (1997)). Under the new provision, a criminal defendant’s mental disease or defect is relevant to his guilt or innocence only insofar as it shows that he lacked the intent defined as an element of the offense, or mens rea. If the defendant acted with the required level of intent, then he has no defense based on mental illness. Kan. Stat. Ann. §21–5209 (2018 Cum. Supp.). Under Kansas’ changed law, the defendant in Prosecu- tion One could defend against the charge by arguing that his mental illness prevented him from forming the mental state required for murder (intentional killing of a human being)—just as any defendant may attempt to rebut the State’s prima facie case for guilt. The defendant in Prose- cution Two has no defense. Because he acted with the req- uisite level of intent, he must be convicted regardless of any role his mental illness played in his conduct. See 307 Kan. 374, 401, 410 P.3d 105, 125 (2018) (acknowledging that Kansas’ mens rea approach “allows conviction of an individ- ual who had no capacity to know that what he or she was doing was wrong”). I do not mean to suggest that M’Naghten’s particular ap- proach to insanity is constitutionally required. As we have said, “[h]istory shows no deference to M’Naghten.” Clark v. Arizona, 548 U.S. 735, 749 (2006). M’Naghten’s second prong is merely one way of describing something more fun- damental. Its basic insight is that mental illness may so impair a person’s mental capacities as to render him no more responsible for his actions than a young child or a wild animal. Such a person is not properly the subject of the criminal law. As I shall explain in the following section, 4 KAHLER v. KANSAS BREYER, J., dissenting throughout history, the law has attempted to embody this principle in a variety of ways. As a historical matter, M’Naghten is by far its most prominent expression, but not its exclusive one. Other ways of capturing it may well emerge in the future. The problem with Kansas’ law is that it excises this fundamental principle from its law entirely. II The Due Process Clause protects those “ ‘principle[s] of justice so rooted in the traditions and conscience of our peo- ple as to be ranked as fundamental.’ ” Leland, 343 U.S., at 798. Our “primary guide” in determining whether a princi- ple of justice ranks as fundamental is “historical practice.” Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (plurality opin- ion). The Court contends that the historical formulations of the insanity defense were so diverse, so contested, as to make it impossible to discern a unified principle that Kan- sas’ approach offends. I disagree. Few doctrines are as deeply rooted in our common-law heritage as the insanity defense. Although English and early American sources differ in their linguistic formula- tions of the legal test for insanity, with striking consistency, they all express the same underlying idea: A defendant who, due to mental illness, lacks sufficient mental capacity to be held morally responsible for his actions cannot be found guilty of a crime. This principle remained embedded in the law even as social mores shifted and medical under- standings of mental illness evolved. Early American courts incorporated it into their jurisprudence. The States even- tually codified it in their criminal laws. And to this day, the overwhelming majority of U. S. jurisdictions recognize in- sanity as an affirmative defense that excuses a defendant from criminal liability even where he was capable of form- ing the mens rea required for the offense. See Appendix, infra. Cite as: 589 U. S. ____ (2020) 5 BREYER, J., dissenting A Consider the established common-law background of the insanity defense at and around the time the Framers wrote the Constitution. The four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, each linked criminal- ity to the presence of reason, free will, and moral under- standing. It is “will and purpose,” wrote Henry de Bracton in his 13th-century treatise, that “mark maleficia [mis- deeds].” 2 Bracton On Laws and Customs of England 384 (S. Thorne transl. 1968) (Bracton); Oxford Latin Dictionary 1067 (P. Glare ed. 1982). A “madman,” he explained, “can no more commit an injuria [unlawful conduct] or a felony than a brute animal, since they are not far removed from brutes.” 2 Bracton 424; Oxford Latin Dictionary, at 914. Seizing on Bracton’s reference to “brute animals” (some- times translated “wild beasts”), the Court concludes that Bracton’s approach, like Kansas’, would excuse only those who lack capacity to form any intention at all. See ante, at 15. But what does it mean to be like a “brute animal”? A brute animal may well and readily intend to commit a vio- lent act without being able to judge its moral nature. For example, when a lion stalks and kills its prey, though it acts intentionally, it does not offend against the criminal laws. See 2 Bracton 379 (noting that “murder” is defined as “by the hand of man” to “distinguish it from the case of those slain or devoured by beasts and animals which lack reason”). Bracton’s other references to “madmen” shed further light on the meaning he attached to that term. Bracton de- scribed such persons as “without sense and reason” and “lack[ing] animus.” Id., at 324, 424. And he likened a “lu- natic” to an “infant,” who cannot be held liable in damages unless he “is capable of perceiving the wrongful character of his act.” Id., at 324; see also 4 id., at 356 (“in many ways a minor and a madman are considered equals or not very different, because they lack reason” (footnote omitted)). 6 KAHLER v. KANSAS BREYER, J., dissenting Thus, Bracton’s “brute animal” included those who lacked the qualities of reason and judgment that make human be- ings responsible moral agents. See Platt, The Origins and Development of the “Wild Beast” Concept of Mental Illness and Its Relation to Theories of Criminal Responsibility, 1 Issues in Crim. 1, 6 (1965). Leaving Bracton, let us turn to Sir Edward Coke, writing in the early 17th century. Coke wrote that “the act and wrong of a mad man shall not be imputed to him,” not be- cause he could not engage in intentional conduct (the equiv- alent of the modern concept of mens rea), but because he lacked something more—“mind or discretion.” 2 Institutes of the Laws of England §405, p. 247b (1628). Coke, like Bracton before him, likened a “mad man” to an “[i]nfant,” who could not be punished as a criminal “untill he be of the age of fourteene, which in Law is accounted the age of dis- cretion.” Ibid. What is it that the “[i]nfant” lacks? Since long before Coke’s time, English jurists and scholars be- lieved that it was the moral nature, not the physical nature, of an act that a young child is unlikely to understand. See Platt & Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Devel- opment in the United States: An Historical Survey, 54 Cal. L. Rev. 1227, 1233–1234 (1966) (Platt & Diamond). Sir Matthew Hale also premised criminal liability on the presence of “understanding and liberty of will,” without which “there can be no transgression, or just reason to incur the penalty or sanction that law instituted for the punish- ment of the crimes or offenses.” 1 Pleas of the Crown, ch. 2, pp. 14–15 (1736). Hale, too, likened insane persons to “in- fants” under the age of 14, who were subject to the criminal laws only if they “had discretion to judge between good and evil.” Id., ch. 3, at 26–27; id., ch. 4, at 30 (a person who is “labouring under melancholy distempers hath yet ordinar- ily as great understanding, as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or Cite as: 589 U. S. ____ (2020) 7 BREYER, J., dissenting felony”). Those suffering from “total insanity” could not be guilty of capital offenses, “for they have not the use of understanding, and act not as reasonable creatures, but their actions are in effect in the condition of brutes.” Id., at 30–32. Sir William Blackstone, whose influence on the founding generation was the most profound, was yet more explicit. A criminal offense, he explained, requires both a “vitious will” and a “vitious act.” 4 Commentaries on the Laws of Eng- land 21 (1769). Persons suffering from a “deficiency in will” arising from a “defective or vitiated understanding” were “not [criminally] chargeable for their own acts.” Id., at 24. Citing Coke, he explained that murder must be “committed by a person of sound memory and discretion” because a “lu- natic or infant” is “incapable of committing any crime, un- less in such cases where they shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.” Id., at 195–196. And he opined that depri- vation of “the capacity of discerning right from wrong” is necessary “to form a legal excuse.” Id., at 189. These four eminent jurists were not alone. Numerous other commentators expressly linked criminal liability with the accused’s capacity for moral agency. William Lam- bard’s 1581 treatise ranked a “mad man” as akin to a “childe” who had “no knowledge of good nor evil.” Eirenar- cha, ch. 21, p. 218. If such a person killed a man, that is “no felonious acte” because “they can[n]ot be said to have any understanding wil[l].” Ibid. But if “upon examination” it appeared that “they knew what they did, [and] it was ill, the[n] seemeth it to be otherwise.” Ibid. (emphasis added). Michael Dalton’s 1618 manual for justices of the peace in- structed that “[i]f one that is Non compos mentis . . . kill a man, this is no felonie; for they have no knowledge of good and evill, nor can have a felonious intent, nor a will or mind to do harme.” The Countrey Justice 215. William Hawkins, 8 KAHLER v. KANSAS BREYER, J., dissenting in 1716, wrote that “those who,” like “[l]unaticks,” are “un- der a natural Disability of distinguishing between Good and Evil . . . are not punishable by any criminal Prosecution whatsoever.” 1 Pleas of the Crown §1, p. 2; see also id., at 1 (“The Guilt of offending against any Law whatsoever . . . can never justly be imputed to those who are either unca- pable of understanding it, or of conforming themselves to it”). English treatises on the law of mental disability adopted the same view. George Collinson explained that “[t]o ex- cuse a man in the commission of a crime, he must at the period when he committed the offense, have been wholly in- capable of distinguishing between good and evil, or of com- prehending the nature of what he is doing.” Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compotes Mentis §7, p. 474 (1812) (Collinson); see also id., §2, at 471 (“[A]n evil intention is implied in every offence, and constitutes the charge of every indictment: but a non compos, not having a will of his own, cannot have an inten- tion morally good or bad; so that the overt act by which alone the motives of other men are discerned, with respect to him proves nothing”). Similarly, Leonard Shelford, sum- marizing English case law, wrote that “[t]he essence of a crime consists in the animus or intention of the person who commits it, considered as a free agent, and in a capacity of distinguishing between moral good and evil.” Practical Treatise on the Law Concerning Lunatics, Idiots, and Per- sons of Unsound Mind 458 (1833) (emphasis deleted). The majority believes that I am “cherry-pick[ing]” refer- ences to moral understanding while ignoring references to intent and mens rea. See ante, at 15–17, nn. 8, 9. With respect, I disagree. The Court points out, correctly, that many of the common-law sources state that the insane lack mens rea or felonious intent. But what did they mean by that? At common law, the term mens rea ordinarily incor- Cite as: 589 U. S. ____ (2020) 9 BREYER, J., dissenting porated the notion of “general moral blameworthiness” re- quired for criminal punishment. Sayre, Mens Rea, 45 Harv. L. Rev. 974, 988 (1932); 3 Encyclopedia of Crime and Jus- tice 995 (2d ed. 2002) (as used at common law, the term mens rea “is synonymous with a person’s blameworthi- ness”). The modern meaning of mens rea is narrower and more technical. Ibid. It refers to the “state of mind or inat- tention that, together with its accompanying conduct, the criminal law defines as an offense.” Ibid. When common- law writers speak of intent or mens rea, we cannot simply assume that they use those terms in the modern sense. That is an anachronism. Instead, we must examine the context to understand what meaning they ascribed to those terms. And when we do so, we see that, over and over again, they link criminal intent to the presence of free will and moral understanding. The Court dismisses those passages as just “some ‘good and evil’ language.” Ante, at 17, n. 9. But it fails to explain why, if mens rea in the modern sense were sufficient, these common-law writers discuss the role of moral agency at all, much less why such language ap- pears in virtually every treatise and virtually every case. In the Court’s view, all that is just spilled ink. The English case law illustrates this point. In the semi- nal case of Rex v. Arnold, 16 How. St. Tr. 695 (1724), the defendant stood accused of shooting Lord Onslow while la- boring under the insane delusion that Onslow had be- witched him. Id., at 699, 721. The Court emphasizes Jus- tice Tracy’s statement to the jury that if a man is “ ‘deprived of his reason, and consequently of his intention, he cannot be guilty,’ ” concluding that the court adopted a modern mens rea test. Ante, at 16. But in the passage immediately preceding that statement, Justice Tracy explained that the defendant’s intent to shoot was clearly proved, and that the only remaining question was whether his mental illness ex- cused him from blame: 10 KAHLER v. KANSAS BREYER, J., dissenting “That he shot, and that wilfully [is proved]: but whether maliciously, that is the thing: that is the ques- tion; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arises from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his inten- tion, he cannot be guilty; and if that be the case, though he had actually killed my lord Onslow, he is exempted from punishment.” 16 How. St. Tr., at 764 (emphasis added; brackets in original). See also ibid. (summarizing the testimony of one Mr. Coe, who testified that he went to the defendant three days after the shooting “and asked him, If he intended to kill my lord Onslow? and he said, Yes, to be sure”). On the next page, Justice Tracy concluded that the jury must determine whether the evidence “doth shew a man, who knew what he was doing, and was able to distinguish whether he was do- ing good or evil, and understood what he did.” Id., at 765. Likewise, in the case of Rex v. Lord Ferrers, 19 How. St. Tr. 886 (1760), the solicitor general instructed the members of the House of Lords to consider the “ ‘capacity and inten- tion’ ” of the accused, to be sure, ante, at 17, but what did he mean by those terms? The ultimate question of insanity, he explained, depended on the defendant’s capacity at the time of the offense to distinguish right from wrong: “My lords, the question therefore must be asked; is the noble prisoner at the bar to be acquitted from the guilt of murder, on account of insanity? It is not pretended to be a constant general insanity. Was he under the power of it, at the time of the offence committed? Could he, did he, at that time, distinguish between good and Cite as: 589 U. S. ____ (2020) 11 BREYER, J., dissenting evil?” 19 How. St. Tr., at 948. In summation, the solicitor general argued that Lord Fer- rers’ own witnesses failed to provide any testimony “which proves his lunacy or insanity at any time.” Id., at 952. Re- viewing the pertinent evidence, he noted that one witness testified that he “had observed great oddities in my lord,” but acknowledged that he “never saw him in such a situa- tion, as not to be capable of distinguishing between good and evil, and not to know, that murder was a great crime.” Ibid. Another admitted under questioning by the Lords that “he thought lord Ferrers capable of distinguishing be- tween moral and immoral actions.” Ibid. The defendant’s brother was the only witness to testify that “at particular times, the noble lord might not be able to distinguish be- tween moral good and evil,” but even he, the solicitor gen- eral argued, had been unable to testify to “any instance within his own recollection.” Id., at 953. If Lord Ferrers’ bare intention to kill were sufficient to convict, why the ex- tensive discussion of the evidence concerning his capacity for moral understanding? These examples reflect the prevailing view of the law around the time of the founding. Judges regularly in- structed juries that the defendant’s criminal liability de- pended on his capacity for moral responsibility. See, e.g., Trial of Samuel Burt (July 19, 1786), in 6 Old Bailey Pro- ceedings 875 (E. Hodgson ed. 1788) (to acquit based on in- sanity, it must be shown that the mental disorder “takes away from the party all moral agency and accountability,” and “destroys in them, for the time at least, all power of judging between right and wrong”); Trial of Francis Parr (Jan. 15, 1787), 2 id., at 228 (jury must “judge whether at the moment of committing [the offense] he was not a moral agent, capable of discerning between good and evil, and of knowing the consequences of what he did”); Bowler’s Case, 1 Collinson 673–674, n. (judge “concluded by observing to 12 KAHLER v. KANSAS BREYER, J., dissenting the jury, that it was for them to determine whether the Prisoner, when he committed the offence with which he stood charged, was or was not incapable of distinguishing right from wrong”). The government’s attorneys agreed that this was the proper inquiry. See, e.g., Parker’s Case, 1 id., at 479–480 (the Attorney General argued that “the jury must be perfectly satisfied, that at the time when the crime was committed, the prisoner did not really know right from wrong”). In none of the common-law cases was the judge’s refer- ence to the defendant’s capacity for moral agency simply a proxy for the narrow modern notion of mens rea. See ante, at 17. Something more was required. Consider Belling- ham’s Case, 1 Collinson 636. The defendant stood accused of the murder of Spencer Perceval, the Chancellor of the Ex- chequer, in the lobby of the House of Commons. Ibid. The Court emphasizes Chief Justice Mansfield’s statement that one who could not distinguish right from wrong “ ‘could have no intention at all,’ ” concluding that Chief Justice Mans- field viewed moral incapacity as a symptom of cognitive breakdown rather than a test of insanity. Ante, at 18. But, as in Rex v. Arnold, see supra, at 9–10, the defendant’s in- tention to shoot Perceval was not seriously in dispute. 1 Collinson 670. Instead, his guilt or innocence turned on his capacity for moral blame. The “single question” for the jury, charged the Chief Justice, “was whether, when [the defend- ant] committed the offence charged upon him, he had suffi- cient understanding to distinguish good from evil, right from wrong, and that murder was a crime not only against the law of God, but against the law of his Country.” Id., at 673. Lord Lyndhurst, presiding over the case of Rex v. Of- ford, 5 Car. & P. 168, 172 Eng. Rep. 924 (N. P. 1831), cer- tainly understood that inquiry to be the crux of Chief Jus- tice Mansfield’s charge. Citing Bellingham’s Case, he instructed the jury that “[t]he question was, did [the ac- cused] know that he was committing an offence against the Cite as: 589 U. S. ____ (2020) 13 BREYER, J., dissenting laws of God and nature?” 5 Car. & P., at 168, 172 Eng. Rep., at 925. The Court dismisses other common-law cases as failing to articulate a clear legal standard. See ante, at 18–19. But these cases, too, required more than bare intent. In Had- field’s Case, 27 How. St. Tr. 1281 (1800), the defendant was acquitted after the prosecution conceded that he was “in a deranged state of mind” when he shot at King George III. Id., at 1353. And in Regina v. Oxford, 9 Car. & P. 525, 173 Eng. Rep. 941 (N. P. 1840), the court observed that a “per- son may commit a criminal act, and yet not be responsible.” Id., at 546, 173 Eng. Rep., at 950. Although it acknowl- edged the difficulty of “lay[ing] down the rule of the English law on the subject,” it summed up the inquiry as “whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the na- ture, character, and consequences of the act he was commit- ting, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime.” Id., at 546– 547, 173 Eng. Rep., at 950. Although these and other Eng- lish cases discuss insanity in terms that are less precise than our modern taxonomy of mental states, their lesson is clear. To be guilty of a crime, the accused must have some- thing more than bare ability to form intentions and carry them out. B These fundamental principles of criminal responsibility were incorporated into American law from the early days of the Republic. Early American commentaries on the crimi- nal law generally consisted of abridgments of the works of prominent English jurists. As early as 1792, one such abridgment instructed that “lunaticks, who are under a natural disability of distinguishing between good and evil are not punishable by any criminal prosecution.” R. Burn, 14 KAHLER v. KANSAS BREYER, J., dissenting Abridgment, or the American Justice 300; see also W. Stubbs, Crown Circuit Companion 288 (1 Am. ed. 1816) (“If one that is non compos mentis . . . kill a man, this is no fel- ony; for they have not knowledge of good and evil, nor can have a felonious intent, nor a will or mind to do harm”). And an influential founding-era legal dictionary described the “general rule” that lunatics, “being by reason of their natural disabilities incapable of judging between good and evil, are punishable by no criminal prosecution whatso- ever.” 2 T. Cunningham, New and Complete Law Dictionary (2d corr. ed. 1771). Similarly, the first compre- hensive American text on forensic medicine, published in 1823, cited Chief Justice Mansfield’s charge to the jury in Bellingham’s Case for the proposition that “[s]o long as they could distinguish good from evil, so long would they be an- swerable for their conduct.” 1 T. Beck, Elements of Medical Jurisprudence 369. These principles, it concluded, “are doubtless correct, and conducive to the ends of justice.” Id., at 370. Early American jurists closely hewed to these principles. In case after case, judges instructed juries that they must inquire into the defendant’s capacity for moral understand- ing. See, e.g., Meriam’s Case, 7 Mass. 168 (1810), 6 N. Y. City-Hall Recorder 162 (1822) (whether the defendant was “at the time, capable of distinguishing good from evil”); Clark’s Case, 1 N. Y. City-Hall Recorder 176, 177 (1816) (same); Ball’s Case, 2 N. Y. City-Hall Recorder 85, 86 (1817) (same); United States v. Clarke, 25 F. Cas. 454 (No. 14,811) (CC DC 1818) (whether defendant was “in such a state of mental insanity . . . as not to have been conscious of the moral turpitude of the act”); Cornwell v. State, 8 Tenn. 147, 155 (1827) (whether the prisoner “had not sufficient under- standing to know right from wrong”). C As the foregoing demonstrates, by the time the House of Cite as: 589 U. S. ____ (2020) 15 BREYER, J., dissenting Lords articulated the M’Naghten test in 1843, its “essential concept and phraseology” were “already ancient and thor- oughly embedded in the law.” Platt & Diamond 1258; see also 1 W. Russell, Crimes and Misdemeanors 8–14 (3d ed. 1843) (summarizing the pre-M’Naghten English case law and concluding that the key questions were whether “there be thought and design, a faculty to distinguish the nature of actions, [and] to discern the difference between moral good and evil”). Variations on the M’Naghten rules soon became the predominant standard in the existing states of the United States. Platt & Diamond 1257. That tradition has continued, almost without exception, to the present day. It is true that, even following M’Naghten, States contin- ued to experiment with different formulations of the insan- ity defense. See ante, at 19–20. Some adopted the volitional incapacity, or “irresistible-impulse,” test. But those States understood that innovation to expand, not contract, the scope of the insanity defense, excusing not only defendants who met some variant of the traditional M’Naghten test but also those who understood that their conduct was wrong but were incapable of restraint. See, e.g., Parsons v. State, 81 Ala. 577, 584–585, 2 So. 854, 858–859 (1887); Bradley v. State, 31 Ind. 492, 507–508 (1869); State v. Felter, 25 Iowa 67, 82–83 (1868); Hopps v. People, 31 Ill. 385, 391–392 (1863). So too, the “offspring” or “product” test, which asks whether the defendant’s conduct was attributable to mental disease or defect. The States that adopted this test did so out of the conviction that the M’Naghten test was too re- strictive in its approach to assessing the accused’s capacity for criminal responsibility. See Durham v. United States, 214 F.2d 862, 874 (CADC 1954) (“We conclude that a broader test should be adopted”); State v. Pike, 49 N. H. 399, 441–442 (1870); see also Reid, Understanding the New Hampshire Doctrine of Criminal Insanity, 69 Yale L. J. 367, 16 KAHLER v. KANSAS BREYER, J., dissenting 386 (1960) (“[T]he New Hampshire doctrine . . . is more lib- eral and has a wider range than M’Naghten rules”). Even as States experimented with broader insanity rules, they retained the core of the traditional common-law defense. In the early 20th century, several States attempted to break with that tradition. The high courts of those States quickly struck down their restrictive laws. As one justice of the Mississippi Supreme Court wrote in 1931: The “common law proceeds upon an idea that before there can be a crime there must be an intelligence capable of comprehending the act prohibited, and the probable consequence of the act, and that the act is wrong.” Sinclair v. State, 161 Miss. 142, 158, 132 So. 581, 583 (Ethridge, J., concurring). Accordingly, Justice Ethridge said, insanity “has always been a complete defense to all crimes from the earliest ages of the common law.” Ibid.; State v. Strasburg, 60 Wash. 106, 116, 110 P. 1020, 1022–1023 (1910); cf. State v. Lange, 168 La. 958, 965, 123 So. 639, 642 (1929). Today, 45 States, the Federal Government, and the Dis- trict of Columbia continue to recognize an insanity defense that retains some inquiry into the blameworthiness of the accused. Seventeen States and the Federal Government use variants of the M’Naghten test, with its alternative cog- nitive and moral incapacity prongs. Three States have adopted M’Naghten plus the volitional test. Ten States rec- ognize a defense based on moral incapacity alone. Thirteen States and the District of Columbia have adopted variants of the Model Penal Code test, which combines volitional in- capacity with an expanded version of moral incapacity. See Appendix, infra. New Hampshire alone continues to use the “product” test, asking whether “a mental disease or de- fect caused the charged conduct.” State v. Fichera, 153 N. H. 588, 593, 903 A.2d 1030, 1035 (2006). This broad test encompasses “ ‘whether the defendant knew the difference between right and wrong and whether the defendant acted Cite as: 589 U. S. ____ (2020) 17 BREYER, J., dissenting impulsively,’ ” as well as “ ‘whether the defendant was suf- fering from delusions or hallucinations.’ ” State v. Cegelis, 138 N. H. 249, 255, 638 A.2d 783, 786 (1994). And North Dakota uses a unique formulation that asks whether the defendant “lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the con- duct is the result of a loss or serious distortion of the indi- vidual’s capacity to recognize reality.” N. D. Cent. Code Ann. §12.1–04.1–01(1) (2012). Of the States that have adopted the M’Naghten or Model Penal Code tests, some interpret knowledge of wrongful- ness to refer to moral wrong, whereas others hold that it means legal wrong. See ante, at 2–3, 20–22. While there is, of course, a logical distinction between those interpreta- tions, there is no indication that it makes a meaningful dif- ference in practice. The two inquiries are closely related and excuse roughly the same universe of defendants. See State v. Worlock, 117 N. J. 596, 609–611, 569 A.2d 1314, 1321–1322 (1990) (“In most instances, legal wrong is coex- tensive with moral wrong”); State v. Crenshaw, 98 Wash. 2d 789, 799, 659 P.2d 488, 494 (1983) (“ ‘[S]ince by far the vast majority of cases in which insanity is pleaded as a defense to criminal prosecutions involves acts which are universally recognized as morally wicked as well as illegal, the hair- splitting distinction between legal and moral wrong need not be given much attention’ ”); People v. Schmidt, 216 N.Y. 324, 340, 110 N.E. 945, 949 (1915) (Cardozo, J.) (“Knowledge that an act is forbidden by law will in most cases permit the inference of knowledge that, according to the accepted standards of mankind, it is also condemned as an offense against good morals”); see also ALI, Model Penal Code §4.01, Explanatory Note, p. 164 (1985) (explaining that “few cases are likely to arise in which the variation will be determinative”). 18 KAHLER v. KANSAS BREYER, J., dissenting III A Consider the basic reason that underlies and explains this long legal tradition. That reason reveals that more is at stake than its duration alone. The tradition reflects the fact that a community’s moral code informs its criminal law. As Henry Hart stated it, the very definition of crime is con- duct that merits “a formal and solemn pronouncement of the moral condemnation of the community.” The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 405 (1958). The criminal law does not adopt, nor does it perfectly track, moral law. It is no defense simply to claim that one’s criminal conduct was morally right. But the criminal law nonetheless tries in various ways to prevent the distance between criminal law and morality from becoming too great. In the words of Justice Holmes, a law that “punished conduct [that] would not be blameworthy in the average member of the community would be too severe for that com- munity to bear.” O. Holmes, The Common Law 50 (1881); see also ibid. (“[T]o deny that criminal liability . . . is founded on blameworthiness . . . would shock the moral sense of any civilized community”). Sometimes the criminal law seeks to keep its strictures roughly in line with the demands of morality through grants of discretion that will help it to reach appropriate results in individual cases, including special instances where the law points one way and morality the other. Thus, prosecutors need not prosecute. Jurors (however in- structed) may decide to acquit. Judges may exercise the discretion the law allows them to impose a lenient sentence. Executives may grant clemency. And sometimes the law attempts to maintain this bal- ance by developing and retaining a “collection of interlock- ing and overlapping concepts,” including defenses, that will help “assess the moral accountability of an individual for Cite as: 589 U. S. ____ (2020) 19 BREYER, J., dissenting his antisocial deeds.” Powell v. Texas, 392 U.S. 514, 535– 536 (1968) (plurality opinion). These concepts and defenses include “actus reus, mens rea, insanity, mistake, justifica- tion, and duress.” Id., at 536. As we have recognized, the “process of adjustment” within and among these overlapping legal concepts “has al- ways been thought to be the province of the States.” Ibid. Matters of degree, specific content, and aptness of applica- tion all may be, and have always been, the subject of legal dispute. But the general purpose—to ensure a rough con- gruence between the criminal law and widely accepted moral sentiments—persists. To gravely undermine the in- sanity defense is to pose a significant obstacle to this basic objective. The majority responds that Kansas has not removed the element of blameworthiness from its treatment of insanity; it has simply made a different judgment about what con- duct is blameworthy. See ante, at 13, n. 7. That is not how the Kansas Supreme Court has characterized its law. See State v. Bethel, 275 Kan. 456, 472, 66 P.3d 840, 850 (2003) (holding that Kansas law provides for “no consideration,” at the guilt phase, “of whether wrongfulness was inherent in the defendant’s intent”). In any event, as the Court acknowledges, the States’ discretion in this area must be constrained within “broad limits,” ante, at 7, which are de- rived from history and tradition. The question is whether Kansas’ approach transgresses those limits. I doubt that the Court would declare, for example, that a State may do away with the defenses of duress or self-defense on the ground that, in its idiosyncratic judgment, they are not re- quired. With respect to the defense of insanity, I believe that our history shows clearly that the criminal law has al- ways required a higher degree of individual culpability than the modern concept of mens rea. See Part II, supra. And in my view, Kansas’ departure from this long uniform tradi- tion poses a serious problem. 20 KAHLER v. KANSAS BREYER, J., dissenting B To see why Kansas’ departure is so serious, go back to our two simplified prosecutions: the first of the defendant who, because of serious mental illness, believes the victim is a dog; the second of a defendant who, because of serious men- tal illness, believes the dog commanded him to kill the vic- tim. Now ask, what moral difference exists between the de- fendants in the two examples? Assuming equivalently convincing evidence of mental illness, I can find none at all. In both cases, the defendants differ from ordinary persons in ways that would lead most of us to say that they should not be held morally responsible for their acts. I cannot find one defendant more responsible than the other. And for centuries, neither has the law. More than that, scholars who have studied this subject tell us that examples of the first kind are rare. See Brief for 290 Criminal Law and Mental Health Law Professors as Amici Curiae 12. Others repeat this claim. See Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1205 (2000); Morse, Mental Disorder and Criminal Law, 101 J. Crim. L. & C. 885, 933 (2011). That is because mental illness typically does not deprive individuals of the ability to form intent. Rather, it affects their motivations for forming such intent. Brief for 290 Criminal Law and Mental Health Law Profes- sors as Amici Curiae 12. For example, the American Psy- chiatric Association tells us that individuals suffering from mental illness may experience delusions—erroneous per- ceptions of the outside world held with strong conviction. They may believe, incorrectly, that others are threatening them harm (persecutory delusions), that God has com- manded them to engage in certain conduct (religious delu- sions), or that they or others are condemned to a life of suf- fering (depressive delusions). Brief for American Psychiatric Association et al. as Amici Curiae 25–26. Such delusions may, in some cases, lead the patient to behave Cite as: 589 U. S. ____ (2020) 21 BREYER, J., dissenting violently. Id., at 28. But they likely would not interfere with his or her perception in such a way as to negate mens rea. See H. R. Rep. No. 98–577, p. 15 n. 23 (1984) (“Mental illness rarely, if ever, renders a person incapable of under- standing what he or she is doing. Mental illness does not, for example, alter the perception of shooting a person to that of shooting a tree.”). Kansas’ abolition of the second part of the M’Naghten test requires conviction of a broad swath of defendants who are obviously insane and would be adjudged not guilty under any traditional form of the defense. This result offends deeply entrenched and widely recognized moral principles underpinning our criminal laws. See, e.g., National Comm’n on Reform of Fed. Crim. Laws, Final Report, Pro- posed New Fed. Crim. Code §503, pp. 40–41 (1971) (to at- tribute guilt to a “manifestly psychotic person” would “be immoral and inconsistent with the aim of a criminal code”); H. R. Rep. No. 98–577, at 7–8 (“[T]he abolition of the affirm- ative insanity defense would alter that fundamental basis of Anglo-American criminal law: the existence of moral cul- pability as a prerequisite for punishment”); ABA Criminal Justice Mental Health Standards §7–6.1, pp. 336–338 (1989) (rejecting the mens rea approach “out of hand” as “a jarring reversal of hundreds of years of moral and legal history” that “inhibits if not prevents the exercise of hu- mane judgment that has distinguished our criminal law heritage”). By contrast, the rule adopted by some States that a de- fendant must be acquitted if he was unable to appreciate the legal wrongfulness of his acts, see ante, at 20–22, would likely lead to acquittal in the mine run of such cases. See supra, at 17. If that is so, then that rule would not pose the same due process problem as Kansas’ approach. That issue is not before us, as Kansas’ law does not provide even that protection to mentally ill defendants. 22 KAHLER v. KANSAS BREYER, J., dissenting C Kansas and the Solicitor General, in their efforts to jus- tify Kansas’ change, make four important arguments. First, they point to cases in this Court in which we have said that the States have broad leeway in shaping the in- sanity defense. See Leland, 343 U.S. 790; Clark, 548 U.S. 735. In Leland, we rejected the defendant’s argument that the Constitution required the adoption of the “ ‘irresistible impulse’ ” test. 343 U.S., at 800–801. Similarly, in Clark, we upheld Arizona’s effort to eliminate the first part of the M’Naghten rule, applicable to defendants whose mental ill- ness deprived them of the ability to know the “ ‘nature and quality of the act,’ ” 548 U.S., at 747–748. If Arizona can eliminate the first prong of M’Naghten, Kansas asks, why can Kansas not eliminate the second part? The answer to this question lies in the fact that Arizona, while amending the insanity provisions of its criminal code, did not in practice eliminate the traditional insanity de- fense in any significant part. See 548 U.S., at 752, n. 20 (reserving the question whether “the Constitution man- dates an insanity defense”). As we pointed out, “cognitive incapacity is itself enough to demonstrate moral incapac- ity.” Id., at 753. Evidence that the defendant did not know what he was doing would also tend to establish that he did not know that it was wrong. Id., at 753–754. And Prosecu- tion One (he thought the victim was a dog) would still fail. The ability of the States to refuse to adopt other insanity tests, such as the “irresistible impulse” test or the “product of mental illness” test are also beside the point. See Leland, 343 U.S., at 800–801. Those tests both expand upon M’Naghten’s principles. Their elimination would cut the defense back to what it traditionally has been, not, as here, eliminate its very essence. Second, the United States as amicus curiae suggests that the insanity defense is simply too difficult for juries to ad- minister. Brief for United States as Amicus Curiae 12–13. Cite as: 589 U. S. ____ (2020) 23 BREYER, J., dissenting Without doubt, assessing the defendant’s claim of insanity is difficult. That is one reason I believe that States must remain free to refine and redefine their insanity rules within broad bounds. But juries have been making that de- termination for centuries and continue to do so in 45 States. And I do not see how an administrative difficulty can justify abolishing the heart of the defense. Third, Kansas argues that it has not abolished the insan- ity defense or any significant part of it. It has simply moved the stage at which a defendant can present the full range of mental-capacity evidence to sentencing. See Brief for Re- spondent 8; ante, at 4–5. But our tradition demands that an insane defendant should not be found guilty in the first place. Moreover, the relief that Kansas offers, in the form of sentencing discretion and the possibility of commitment in lieu of incarceration, is a matter of judicial discretion, not of right. See State v. Maestas, 298 Kan. 765, 316 P.3d 724 (2014). The insane defendant is, under Kansas law, ex- posed to harsh criminal sanctions up to and including death. And Kansas’ sentencing provisions do nothing to al- leviate the stigma and the collateral consequences of a criminal conviction. Finally, Kansas argues that the insane, provided they are capable of intentional action, are culpable and should be held liable for their antisocial conduct. Brief for Respond- ent 40. To say this, however, is simply to restate the con- clusion for which Kansas argues in this case. It is a conclu- sion that in my view runs contrary to a legal tradition that embodies a fundamental precept of our criminal law and that stretches back, at least, to the origins of our Nation. For these reasons, with respect, I dissent. 24 KAHLER v. KANSAS BREYER Appendix to the, J., dissenting opinion of BREYER, J. APPENDIX M’Naghten State Text Alabama “It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts con- stituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the na- ture and quality or wrongfulness of his acts.” Ala. Code §13A–3–1(a) (2015). California “In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a pre- ponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” Cal. Penal Code Ann. §25(b) (West 2014). Colorado “(1) The applicable test of insanity shall be: “(a) A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliq- uity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil condi- tions, for, when the act is induced by any of these causes, the person is accountable to the law; or “(b) A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.” Colo. Rev. Stat. §16–8–101.5(1) (2019). Florida “(1) AFFIRMATIVE DEFENSE.––All persons are pre- sumed to be sane. It is an affirmative defense to a crimi- nal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when: “(a) The defendant had a mental infirmity, disease, or defect; and “(b) Because of this condition, the defendant: Cite as: 589 U. S. ____ (2020) 25 Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text “1. Did not know what he or she was doing or its conse- quences; or “2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong. “Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.” Fla. Stat. §775.027 (2018). Iowa “A person shall not be convicted of a crime if at the time the crime is committed the person suffers from such a dis- eased or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguish- ing between right and wrong in relation to that act.” Iowa Code §701.4 (2016). Minne- “No person having a mental illness or cognitive impair- sota ment so as to be incapable of understanding the proceed- ings or making a defense shall be tried, sentenced, or pun- ished for any crime; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was la- boring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.” Minn. Stat. §611.026 (2019). Missis- “In determining sanity in criminal cases Mississippi uti- sippi lizes the common law M’Naghten test. Under the M’Naghten test, the accused must be laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did not know it, that he did not know that what he was doing was wrong.” Parker v. State, 273 So. 3d 695, 705–706 (Miss. 2019) (internal quotation marks and foot- note omitted). Missouri “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or de- fect he was incapable of knowing and appreciating the na- ture, quality or wrongfulness of his or her conduct.” Mo. Rev. Stat. §562.086(1) (2016). Nebraska “Under our current common-law definition, the two re- quirements for the insanity defense are that (1) the de- fendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong.” State v. Hotz, 281 Neb. 260, 270, 795 N.W.2d 26 KAHLER v. KANSAS Appendix to the, opinion BREYER of BREYER, J. J., dissenting State Text 645, 653 (2011). Nevada “To qualify as being legally insane, a defendant must be in a delusional state such that he cannot know or under- stand the nature and capacity of his act, or his delusion must be such that he cannot appreciate the wrongfulness of his act, that is, that the act is not authorized by law.” Finger v. State, 117 Nev. 548, 576, 27 P.3d 66, 84–85 (2001). New “A person is not criminally responsible for conduct if at Jersey the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.” N. J. Stat. Ann. §2C:4–1 (West 2015). New York “In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the pro- scribed conduct, he lacked criminal responsibility by rea- son of mental disease or defect. Such lack of criminal re- sponsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: “1. The nature and consequences of such conduct; or “2. That such conduct was wrong.” N. Y. Penal Law Ann. §40.15 (West 2009). North “[A]n accused is legally insane and exempt from criminal Carolina responsibility by reason thereof if he commits an act which would otherwise be punishable as a crime, and at the time of so doing is laboring under such a defect of rea- son, from disease of the mind, as to be incapable of know- ing the nature and quality of the act he is doing, or, if he does know this, incapable of distinguishing between right and wrong in relation to such act.” State v. Thompson, 328 N. C. 477, 485–486, 402 S.E.2d 386, 390 (1991). Okla- “Oklahoma uses the M’Naghten test to determine the is- homa sue of sanity at the time of the crime. This Court has held that the M’Naghten insanity test, as applied in Okla- homa, has two prongs. Under the first prong, the defend- ant is considered insane if he is suffering from a mental disability such that he does not know his acts are wrong and he is unable to distinguish right from wrong with re- spect to his acts. Under the second prong, the defendant is considered insane if suffering from a disability of rea- son or disease of the mind such that he does not under- stand the nature or consequences of his acts or omissions. The defendant need only satisfy one of these prongs in order to be found not guilty by reason of insanity.” Cite as: 589 U. S. ____ (2020) 27 Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text Cheney v. State, 909 P.2d 74, 90 (Okla. 1995) (footnotes omitted). Pennsyl- “Common law M’Naghten’s Rule preserved.—Nothing in vania this section shall be deemed to repeal or otherwise abro- gate the common law defense of insanity (M’Naghten’s Rule) in effect in this Commonwealth on the effective date of this section.” 18 Pa. Cons. Stat. §314(d) (2015). Tennes- “It is an affirmative defense to prosecution that, at the see time of the commission of the acts constituting the of- fense, the defendant, as a result of a severe mental dis- ease or defect, was unable to appreciate the nature or wrongfulness of the defendant’s acts.” Tenn. Code Ann. §39–11–501(a) (2018). Washing- “To establish the defense of insanity, it must be shown ton that: “(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that: “(a) He or she was unable to perceive the nature and quality of the act with which he or she is charged; or “(b) He or she was unable to tell right from wrong with reference to the particular act charged.” Wash. Rev. Code §9A.12.010 (2015). Federal “Affirmative Defense.—It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S. C. §17. M’Naghten plus volitional incapacity State Text Georgia “A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distin- guish between right and wrong in relation to such act, omission, or negligence.” Ga. Code Ann. §16–3–2 (2019). “A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a de- lusional compulsion as to such act which overmastered his will to resist committing the crime.” §16–3–3. New “In order to support a verdict of insanity under the Mexico 28 KAHLER v. KANSAS BREYER Appendix to the, J., dissenting opinion of BREYER, J. State Text M’Naghten test, the jury must be satisfied that the de- fendant (1) did not know the nature and quality of the act or (2) did not know that it was wrong. This rule prevailed in New Mexico until 1954 when this court in State v. White, 56 N. M. 324, 270 P.2d 727 (1954) made a careful analysis of the authorities and made a limited extension of the M’Naghten rule, adding a third ingredient. The court held that if the accused, (3) as a result of disease of the mind ‘was incapable of preventing himself from com- mitting’ the crime, he could be adjudged insane and thereby relieved of legal responsibility for what would otherwise be a criminal act.” State v. Hartley, 90 N. M. 488, 490, 565 P.2d 658, 660 (1977). Virginia “As applied in Virginia, the defense of insanity provides that a defendant may prove that at the time of the com- mission of the act, he was suffering from a mental disease or defect such that he did not know the nature and quality of the act he was doing, or, if he did know it, he did not know what he was doing was wrong. . . . In addition, we have approved in appropriate cases the granting of an in- struction defining an ‘irresistible impulse’ as a form of le- gal insanity. The irresistible impulse doctrine is applica- ble only to that class of cases where the accused is able to understand the nature and consequences of his act and knows it is wrong, but his mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act.” Orndorff v. Common- wealth, 279 Va. 597, 601, n. 5, 691 S.E.2d 177, 179, n. 5 (2010) (internal quotation marks and citations omitted). Moral incapacity State Text Arizona “A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such se- verity that the person did not know the criminal act was wrong.” Ariz. Rev. Stat. Ann. §13–502(A) (2010). Delaware “In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused’s conduct.” Del. Code Ann., Tit. 11, §401(a) (2015). Illinois “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease Cite as: 589 U. S. ____ (2020) 29 Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text or mental defect, he lacks substantial capacity to appre- ciate the criminality of his conduct.” Ill. Comp. Stat., ch. 720, §5/6–2(a) (West 2017). Indiana “A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or de- fect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.” Ind. Code §35–41– 3–6(a) (2019). Louisiana “If the circumstances indicate that because of a men- tal disease or mental defect the offender was incapable of distinguishing between right and wrong with refer- ence to the conduct in question, the offender shall be ex- empt from criminal responsibility.” La. Rev. Stat. Ann. §14:14 (West 2016). Maine “A defendant is not criminally responsible by reason of insanity if, at the time of the criminal conduct, as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the wrongfulness of the criminal conduct.” Me. Rev. Stat. Ann., Tit. 17, §39(1) (2006). Ohio “A person is ‘not guilty by reason of insanity’ relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the per- son did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.” Ohio Rev. Code Ann. §2901.01(14) (Lexis 2014). South “It is an affirmative defense to a prosecution for a Carolina crime that, at the time of the commission of the act con- stituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to rec- ognize the particular act charged as morally or legally wrong.” S. C. Code Ann. §17–24–10(A) (2014). South “ ‘Insanity,’ the condition of a person temporarily or Dakota partially deprived of reason, upon proof that at the time of committing the act, the person was incapable of know- ing its wrongfulness, but not including an abnormality manifested only by repeated unlawful or antisocial be- havior.” S. D. Codified Laws §22–1–2(20) (2017). “Insanity is an affirmative defense to a prosecution for any criminal offense.” §22–5–10. Texas “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Tex. Penal Code Ann. §8.01(a) (West 2011). 30 KAHLER v. KANSAS Appendix to the, J., BREYER dissenting opinion of BREYER, J. Model Penal Code State Text Arkansas “ ‘Lack of criminal responsibility’ means that due to a mental disease or defect a defendant lacked the capacity at the time of the alleged offense to either: “(A) Appreciate the criminality of his or her conduct; or “(B) Conform his or her conduct to the requirements of the law.” Ark. Code Ann. §5–2–301(6) (Supp. 2019). Connecti- “In any prosecution for an offense, it shall be an affirm- cut ative defense that the defendant, at the time he commit- ted the proscribed act or acts, lacked substantial capac- ity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” Conn. Gen. Stat. §53a–13(a) (2017). Hawaii “A person is not responsible, under this Code, for con- duct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongful- ness of the person’s conduct or to conform the person’s conduct to the requirements of law.” Haw. Rev. Stat. §704–400(1) (2014). Kentucky “A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or intellectual disability, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ky. Rev. Stat. Ann. §504.020(1) (West 2016). Maryland “A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to: “(1) appreciate the criminality of that conduct; or “(2) conform that conduct to the requirements of law.” Md. Crim. Proc. Code Ann. §3–109(a) (2018). Massachu- “1. Criminal responsibility. Where a defendant as- setts serts a defense of lack of criminal responsibility and there is evidence at trial that, viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the de- fendant was criminally responsible at the time of the of- fense, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was crim- Cite as: 589 U. S. ____ (2020) 31 Appendix to the, opinion BREYER J., dissenting of BREYER, J. State Text inally responsible. In this process, we require the Com- monwealth to prove negatives beyond a reasonable doubt: that the defendant did not have a mental disease or defect at the time of the crime and, if that is not dis- proved beyond a reasonable doubt, that no mental dis- ease or defect caused the defendant to lack substantial capacity either to appreciate the criminality of his con- duct or to conform his conduct to the requirements of law.” Commonwealth v. Lawson, 475 Mass. 806, 811, 62 N.E.3d 22, 28 (2016) (internal quotation marks and ci- tation omitted). Michigan “It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the of- fense. An individual is legally insane if, as a result of mental illness as defined in section 400 of the mental health code . . . that person lacks substantial capacity either to appreciate the nature and quality or the wrong- fulness of his or her conduct or to conform his or her con- duct to the requirements of the law.” Mich. Comp. Laws Ann. §768.21a(1) (West 2000). Oregon “A person is guilty except for insanity if, as a result of a qualifying mental disorder at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.” Ore. Rev. Stat. §161.295(1) (2019). Rhode “A person is not responsible for criminal conduct if at the Island time of such conduct, as a result of mental disease or de- fect, his capacity either to appreciate the wrongfulness or his conduct or to conform his conduct to the require- ments of the law were so substantially impaired that he cannot justly be held responsible.” State v. Carpio, 43 A. 3d 1, 12, n. 10 (R. I. 2012) (internal quotation marks omitted). Vermont “The test when used as a defense in criminal cases shall be as follows: “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he or she lacks adequate capacity either to ap- preciate the criminality of his or her conduct or to con- form his or her conduct to the requirements of law.” Vt. Stat. Ann., Tit. 13, §4801(a) (2019). West “When a defendant in a criminal case raises the issue of Virginia insanity, the test of his responsibility for his act is whether, at the time of the commission of the act, it was 32 KAHLER v. KANSAS Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text the result of a mental disease or defect causing the accused to lack the capacity either to appreciate the wrongfulness of his act or to conform his act to the re- quirements of the law.” State v. Fleming, 237 W. Va. 44, 52–53, 784 S.E.2d 743, 751–752 (2016). Wisconsin “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or de- fect the person lacked substantial capacity either to ap- preciate the wrongfulness of his or her conduct or con- form his or her conduct to the requirements of law.” Wis. Stat. §971.15(1) (2016). Wyoming “A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity ei- ther to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Wyo. Stat. Ann. §7–11–304(a) (2019). District of “A person is not responsible for criminal conduct if at the Columbia time of such conduct as a result of a mental disease or defect he lacked substantial capacity either to recognize the wrongfulness of his conduct or to conform his con- duct to the requirements of the law.” Bethea v. United States, 365 A.2d 64, 79, n. 30 (D. C. 1976). Unique formulation State Text New “A defendant asserting an insanity defense must prove Hampshire two elements: first, that at the time he acted, he was suf- fering from a mental disease or defect; and, second, that a mental disease or defect caused his actions.” State v. Fichera, 153 N. H. 588, 593, 903 A.2d 1030, 1034 (2006). North “An individual is not criminally responsible for criminal Dakota conduct if, as a result of mental disease or defect existing at the time the conduct occurs: “a. The individual lacks substantial capacity to com- prehend the harmful nature or consequences of the con- duct, or the conduct is the result of a loss or serious dis- tortion of the individual’s capacity to recognize reality; and “b. It is an essential element of the crime charged that the individual act willfully.” N. D. Cent. Code Ann. §12.1–04.1–01(1) (2012)

Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal pro- cedures, including leeway to provide different definitions and standards related to the defense of insanity. But here, Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental ill- ness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy. Seven hundred years of Anglo-American legal history, together with basic princi- ples long inherent in the nature of the criminal law itself, convince me that Kansas’ law “ ‘offends principle[s] of justice so rooted in the traditions and conscience of our peo- ple as to be ranked as fundamental.’ ” ). I A much-simplified example will help the reader under- stand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecu- tion One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of se- vere mental illness, he thought the victim was a dog. Pros- ecution Two is similar but for one thing: The evidence at 2 KAHLER v. KANSAS BREYER, J., dissenting trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kan- sas’ rule, it can convict the second but not the first. To put the matter in more explicitly legal terms, consider the most famous statement of the traditional insanity de- fense, that contained in M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 18). Lord Chief Justice Tin- dal, speaking for a majority of the judges of the common- law courts, described the insanity defense as follows: “[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the commit- ting of the act, the party accused was labouring under such a defect of reason, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or, [2] if he did know it, that he did not know he was doing what was wrong.” 8 Eng. Rep., at 722. The first prong (sometimes referred to as “cognitive inca- pacity”) asks whether the defendant knew what he was do- ing. This prong corresponds roughly to the modern concept of mens rea for many offenses. The second (sometimes re- ferred to as “moral incapacity”) goes further. It asks, even if the defendant knew what he was doing, did he have the capacity to know that it was wrong? Applying this test to my example, a court would find that both defendants suc- cessfully established an insanity defense. Prosecution One (he thought the victim was a dog) falls within M’Naghten’s first prong, while Prosecution Two (he thought the dog or- dered him to do it) falls within its second prong. In Kansas’ early years of statehood, its courts recognized the M’Naghten test as the “cardinal rule of responsibility in the criminal law.” P. 159, 160 (1884). Kansas “steadfastly adhered to that Cite as: 589 U. S. (2020) 3 BREYER, J., dissenting test” for more than a century. 449–450, But in 1995, Kansas “ ‘legislatively abolish[ed] the insanity defense.’ ” State v. Jorrick, (quoting Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J. L. & Pub. Pol’y 253, 254–255 (1997)). Under the new provision, a criminal defendant’s mental disease or defect is relevant to his guilt or innocence only insofar as it shows that he lacked the intent defined as an element of the offense, or mens rea. If the defendant acted with the required level of intent, then he has no defense based on mental illness. –5209 ( Cum. Supp.). Under Kansas’ changed law, the defendant in Prosecu- tion One could defend against the charge by arguing that his mental illness prevented him from forming the mental state required for murder (intentional killing of a human being)—just as any defendant may attempt to rebut the State’s prima facie case for guilt. The defendant in Prose- cution Two has no defense. Because he acted with the req- uisite level of intent, he must be convicted regardless of any role his mental illness played in his conduct. See 307 Kan. 374, 401, 410 P.3d (acknowledging that Kansas’ mens rea approach “allows conviction of an individ- ual who had no capacity to know that what he or she was doing was wrong”). I do not mean to suggest that M’Naghten’s particular ap- proach to insanity is constitutionally required. As we have said, “[h]istory shows no deference to M’Naghten.” Clark v. Arizona, M’Naghten’s second prong is merely one way of describing something more fun- damental. Its basic insight is that mental illness may so impair a person’s mental capacities as to render him no more responsible for his actions than a young child or a wild animal. Such a person is not properly the subject of the criminal law. As I shall explain in the following section, 4 KAHLER v. KANSAS BREYER, J., dissenting throughout history, the law has attempted to embody this principle in a variety of ways. As a historical matter, M’Naghten is by far its most prominent expression, but not its exclusive one. Other ways of capturing it may well emerge in the future. The problem with Kansas’ law is that it excises this fundamental principle from its law entirely. The Due Process Clause protects those “ ‘principle[s] of justice so rooted in the traditions and conscience of our peo- ple as to be ranked as fundamental.’ ” Leland, 3 U.S., at Our “primary guide” in determining whether a princi- ple of justice ranks as fundamental is “historical practice.” (plurality opin- ion). The Court contends that the historical formulations of the insanity defense were so diverse, so contested, as to make it impossible to discern a unified principle that Kan- sas’ approach offends. I disagree. Few doctrines are as deeply rooted in our common-law heritage as the insanity defense. Although English and early American sources differ in their linguistic formula- tions of the legal test for insanity, with striking consistency, they all express the same underlying idea: A defendant who, due to mental illness, lacks sufficient mental capacity to be held morally responsible for his actions cannot be found guilty of a crime. This principle remained embedded in the law even as social mores shifted and medical under- standings of mental illness evolved. Early American courts incorporated it into their jurisprudence. The States even- tually codified it in their criminal laws. And to this day, the overwhelming majority of U. S. jurisdictions recognize in- sanity as an affirmative defense that excuses a defendant from criminal liability even where he was capable of form- ing the mens rea required for the offense. See Appendix, infra. Cite as: 589 U. S. (2020) 5 BREYER, J., dissenting A Consider the established common-law background of the insanity defense at and around the time the Framers wrote the Constitution. The four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, each linked criminal- ity to the presence of reason, free will, and moral under- standing. It is “will and purpose,” wrote Henry de Bracton in his 13th-century treatise, that “mark maleficia [mis- deeds].” 2 Bracton On Laws and Customs of England 384 (S. Thorne transl. 1968) (Bracton); Oxford Latin Dictionary 1067 (P. Glare ed. 19). A “madman,” he explained, “can no more commit an injuria [unlawful conduct] or a felony than a brute animal, since they are not far removed from brutes.” 2 Bracton 424; Oxford Latin Dictionary, at 914. Seizing on Bracton’s reference to “brute animals” (some- times translated “wild beasts”), the Court concludes that Bracton’s approach, like Kansas’, would excuse only those who lack capacity to form any intention at all. See ante, at 15. But what does it mean to be like a “brute animal”? A brute animal may well and readily intend to commit a vio- lent act without being able to judge its moral nature. For example, when a lion stalks and kills its prey, though it acts intentionally, it does not offend against the criminal laws. See 2 Bracton 379 (noting that “murder” is defined as “by the hand of man” to “distinguish it from the case of those slain or devoured by beasts and animals which lack reason”). Bracton’s other references to “madmen” shed further light on the meaning he attached to that term. Bracton de- scribed such persons as “without sense and reason” and “lack[ing] animus.” And he likened a “lu- natic” to an “infant,” who cannot be held liable in damages unless he “is capable of perceiving the wrongful character of his act.” ; see also 4 (“in many ways a minor and a madman are considered equals or not very different, because they lack reason” (footnote omitted)). 6 KAHLER v. KANSAS BREYER, J., dissenting Thus, Bracton’s “brute animal” included those who lacked the qualities of reason and judgment that make human be- ings responsible moral agents. See Platt, The Origins and Development of the “Wild Beast” Concept of Mental Illness and Its Relation to Theories of Criminal Responsibility, 1 Issues in Crim. 1, 6 (1). Leaving Bracton, let us turn to Sir Edward Coke, writing in the early 17th century. Coke wrote that “the act and wrong of a mad man shall not be imputed to him,” not be- cause he could not engage in intentional conduct (the equiv- alent of the modern concept of mens rea), but because he lacked something more—“mind or discretion.” 2 Institutes of the Laws of England p. 247b (1628). Coke, like Bracton before him, likened a “mad man” to an “[i]nfant,” who could not be punished as a criminal “untill he be of the age of fourteene, which in Law is accounted the age of dis- cretion.” What is it that the “[i]nfant” lacks? Since long before Coke’s time, English jurists and scholars be- lieved that it was the moral nature, not the physical nature, of an act that a young child is unlikely to understand. See Platt & Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Devel- opment in the United States: An Historical Survey, 54 Cal. L. Rev. 1227, 1233–1234 (1966) (Platt & Diamond). Sir Matthew Hale also premised criminal liability on the presence of “understanding and liberty of will,” without which “there can be no transgression, or just reason to incur the penalty or sanction that law instituted for the punish- ment of the crimes or offenses.” 1 Pleas of the Crown, ch. 2, pp. 14–15 (1736). Hale, too, likened insane persons to “in- fants” under the age of 14, who were subject to the criminal laws only if they “had discretion to judge between good and evil.” ch. 3, at 26–27; ch. 4, at 30 (a person who is “labouring under melancholy distempers hath yet ordinar- ily as great understanding, as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or Cite as: 589 U. S. (2020) 7 BREYER, J., dissenting felony”). Those suffering from “total insanity” could not be guilty of capital offenses, “for they have not the use of understanding, and act not as reasonable creatures, but their actions are in effect in the condition of brutes.” at 30–32. Sir William Blackstone, whose influence on the founding generation was the most profound, was yet more explicit. A criminal offense, he explained, requires both a “vitious will” and a “vitious act.” 4 Commentaries on the Laws of Eng- land 21 (1769). Persons suffering from a “deficiency in will” arising from a “defective or vitiated understanding” were “not [criminally] chargeable for their own acts.” Citing Coke, he explained that murder must be “committed by a person of sound memory and discretion” because a “lu- natic or infant” is “incapable of committing any crime, un- less in such cases where they shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.” at 195–196. And he opined that depri- vation of “the capacity of discerning right from wrong” is necessary “to form a legal excuse.” These four eminent jurists were not alone. Numerous other commentators expressly linked criminal liability with the accused’s capacity for moral agency. William Lam- bard’s 1 treatise ranked a “mad man” as akin to a “childe” who had “no knowledge of good nor evil.” Eirenar- cha, ch. 21, p. 218. If such a person killed a man, that is “no felonious acte” because “they can[n]ot be said to have any understanding wil[l].” But if “upon examination” it appeared that “they knew what they did, [and] it was ill, the[n] seemeth it to be otherwise.” Michael Dalton’s 1618 manual for justices of the peace in- structed that “[i]f one that is Non compos mentis kill a man, this is no felonie; for they have no knowledge of good and evill, nor can have a felonious intent, nor a will or mind to do harme.” The Countrey Justice 215. William Hawkins, 8 KAHLER v. KANSAS BREYER, J., dissenting in 1716, wrote that “those who,” like “[l]unaticks,” are “un- der a natural Disability of distinguishing between Good and Evil are not punishable by any criminal Prosecution whatsoever.” 1 Pleas of the Crown p. 2; see also at 1 (“The Guilt of offending against any Law whatsoever can never justly be imputed to those who are either unca- pable of understanding it, or of conforming themselves to it”). English treatises on the law of mental disability adopted the same view. George Collinson explained that “[t]o ex- cuse a man in the commission of a crime, he must at the period when he committed the offense, have been wholly in- capable of distinguishing between good and evil, or of com- prehending the nature of what he is doing.” Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compotes Mentis p. 474 (1812) (Collinson); see also at 471 (“[A]n evil intention is implied in every offence, and constitutes the charge of every indictment: but a non compos, not having a will of his own, cannot have an inten- tion morally good or bad; so that the overt act by which alone the motives of other men are discerned, with respect to him proves nothing”). Similarly, Leonard Shelford, sum- marizing English case law, wrote that “[t]he essence of a crime consists in the animus or intention of the person who commits it, considered as a free agent, and in a capacity of distinguishing between moral good and evil.” Practical Treatise on the Law Concerning Lunatics, Idiots, and Per- sons of Unsound Mind 458 (1833) (emphasis deleted). The majority believes that I am “cherry-pick[ing]” refer- ences to moral understanding while ignoring references to intent and mens rea. See ante, at 15–17, nn. 8, 9. With respect, I disagree. The Court points out, correctly, that many of the common-law sources state that the insane lack mens rea or felonious intent. But what did they mean by that? At common law, the term mens rea ordinarily incor- Cite as: 589 U. S. (2020) 9 BREYER, J., dissenting porated the notion of “general moral blameworthiness” re- quired for criminal punishment. Sayre, Mens Rea, 45 Harv. L. Rev. 974, 988 (1932); 3 Encyclopedia of Crime and Jus- tice 995 (2d ed. 2002) (as used at common law, the term mens rea “is synonymous with a person’s blameworthi- ness”). The modern meaning of mens rea is narrower and more technical. It refers to the “state of mind or inat- tention that, together with its accompanying conduct, the criminal law defines as an offense.” When common- law writers speak of intent or mens rea, we cannot simply assume that they use those terms in the modern sense. That is an anachronism. Instead, we must examine the context to understand what meaning they ascribed to those terms. And when we do so, we see that, over and over again, they link criminal intent to the presence of free will and moral understanding. The Court dismisses those passages as just “some ‘good and evil’ language.” Ante, n. 9. But it fails to explain why, if mens rea in the modern sense were sufficient, these common-law writers discuss the role of moral agency at all, much less why such language ap- pears in virtually every treatise and virtually every case. In the Court’s view, all that is just spilled ink. The English case law illustrates this point. In the semi- nal case of Rex v. Arnold, 16 How. St. Tr. 695 (1724), the defendant stood accused of shooting Lord Onslow while la- boring under the insane delusion that Onslow had be- witched him. The Court emphasizes Jus- tice Tracy’s statement to the jury that if a man is “ ‘deprived of his reason, and consequently of his intention, he cannot be guilty,’ ” concluding that the court adopted a modern mens rea Ante, at 16. But in the passage immediately preceding that statement, Justice Tracy explained that the defendant’s intent to shoot was clearly proved, and that the only remaining question was whether his mental illness ex- cused him from blame: 10 KAHLER v. KANSAS BREYER, J., dissenting “That he shot, and that wilfully [is proved]: but whether maliciously, that is the thing: that is the ques- tion; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arises from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his inten- tion, he cannot be guilty; and if that be the case, though he had actually killed my lord Onslow, he is exempted from punishment.” 16 How. St. Tr., at 764 (emphasis added; brackets in original). See also (summarizing the testimony of one Mr. Coe, who testified that he went to the defendant three days after the shooting “and asked him, If he intended to kill my lord Onslow? and he said, Yes, to be sure”). On the next page, Justice Tracy concluded that the jury must determine whether the evidence “doth shew a man, who knew what he was doing, and was able to distinguish whether he was do- ing good or evil, and understood what he did.” Likewise, in the case of Rex v. Lord Ferrers, 19 How. St. Tr. 886 (1760), the solicitor general instructed the members of the House of Lords to consider the “ ‘capacity and inten- tion’ ” of the accused, to be sure, ante, but what did he mean by those terms? The ultimate question of insanity, he explained, depended on the defendant’s capacity at the time of the offense to distinguish right from wrong: “My lords, the question therefore must be asked; is the noble prisoner at the bar to be acquitted from the guilt of murder, on account of insanity? It is not pretended to be a constant general insanity. Was he under the power of it, at the time of the offence committed? Could he, did he, at that time, distinguish between good and Cite as: 589 U. S. (2020) 11 BREYER, J., dissenting evil?” 19 How. St. Tr., at 948. In summation, the solicitor general argued that Lord Fer- rers’ own witnesses failed to provide any testimony “which proves his lunacy or insanity at any time.” Re- viewing the pertinent evidence, he noted that one witness testified that he “had observed great oddities in my lord,” but acknowledged that he “never saw him in such a situa- tion, as not to be capable of distinguishing between good and evil, and not to know, that murder was a great crime.” Another admitted under questioning by the Lords that “he thought lord Ferrers capable of distinguishing be- tween moral and immoral actions.” The defendant’s brother was the only witness to testify that “at particular times, the noble lord might not be able to distinguish be- tween moral good and evil,” but even he, the solicitor gen- eral argued, had been unable to testify to “any instance within his own recollection.” If Lord Ferrers’ bare intention to kill were sufficient to convict, why the ex- tensive discussion of the evidence concerning his capacity for moral understanding? These examples reflect the prevailing view of the law around the time of the founding. Judges regularly in- structed juries that the defendant’s criminal liability de- pended on his capacity for moral responsibility. See, e.g., Trial of Samuel Burt (July 19, 1), in 6 Old Bailey Pro- ceedings 875 (E. Hodgson ed. 1788) (to acquit based on in- sanity, it must be shown that the mental disorder “takes away from the party all moral agency and accountability,” and “destroys in them, for the time at least, all power of judging between right and wrong”); Trial of Francis Parr (Jan. 15, 1787), 2 (jury must “judge whether at the moment of committing [the offense] he was not a moral agent, capable of discerning between good and evil, and of knowing the consequences of what he did”); Bowler’s Case, 1 Collinson 673–674, n. (judge “concluded by observing to 12 KAHLER v. KANSAS BREYER, J., dissenting the jury, that it was for them to determine whether the Prisoner, when he committed the offence with which he stood charged, was or was not incapable of distinguishing right from wrong”). The government’s attorneys agreed that this was the proper inquiry. See, e.g., Parker’s Case, 1 at 479–480 (the Attorney General argued that “the jury must be perfectly satisfied, that at the time when the crime was committed, the prisoner did not really know right from wrong”). In none of the common-law cases was the judge’s refer- ence to the defendant’s capacity for moral agency simply a proxy for the narrow modern notion of mens rea. See ante, Something more was required. Consider Belling- ham’s Case, 1 Collinson 636. The defendant stood accused of the murder of Spencer Perceval, the Chancellor of the Ex- chequer, in the lobby of the House of Commons. The Court emphasizes Chief Justice Mansfield’s statement that one who could not distinguish right from wrong “ ‘could have no intention at all,’ ” concluding that Chief Justice Mans- field viewed moral incapacity as a symptom of cognitive breakdown rather than a test of insanity. Ante, at 18. But, as in Rex v. Arnold, see at 9–10, the defendant’s in- tention to shoot Perceval was not seriously in dispute. 1 Collinson 670. Instead, his guilt or innocence turned on his capacity for moral blame. The “single question” for the jury, charged the Chief Justice, “was whether, when [the defend- ant] committed the offence charged upon him, he had suffi- cient understanding to distinguish good from evil, right from wrong, and that murder was a crime not only against the law of God, but against the law of his Country.” at 673. Lord Lyndhurst, presiding over the case of Rex v. Of- ford, 5 Car. & P. 168, 172 Eng. Rep. 924 (N. P. 1831), cer- tainly understood that inquiry to be the crux of Chief Jus- tice Mansfield’s charge. Citing Bellingham’s Case, he instructed the jury that “[t]he question was, did [the ac- cused] know that he was committing an offence against the Cite as: 589 U. S. (2020) 13 BREYER, J., dissenting laws of God and nature?” 5 Car. & P., at 168, 172 Eng. Rep., at 925. The Court dismisses other common-law cases as failing to articulate a clear legal standard. See ante, at 18–19. But these cases, too, required more than bare intent. In Had- field’s Case, 27 How. St. Tr. 1281 (1800), the defendant was acquitted after the prosecution conceded that he was “in a deranged state of mind” when he shot at King George I. And in Regina v. Oxford, 9 Car. & P. 525, 173 Eng. Rep. 941 (N. P. 1840), the court observed that a “per- son may commit a criminal act, and yet not be responsible.” 173 Eng. Rep., at 950. Although it acknowl- edged the difficulty of “lay[ing] down the rule of the English law on the subject,” it summed up the inquiry as “whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the na- ture, character, and consequences of the act he was commit- ting, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime.” – 547, 173 Eng. Rep., at 950. Although these and other Eng- lish cases discuss insanity in terms that are less precise than our modern taxonomy of mental states, their lesson is clear. To be guilty of a crime, the accused must have some- thing more than bare ability to form intentions and carry them out. B These fundamental principles of criminal responsibility were incorporated into American law from the early days of the Republic. Early American commentaries on the crimi- nal law generally consisted of abridgments of the works of prominent English jurists. As early as 1792, one such abridgment instructed that “lunaticks, who are under a natural disability of distinguishing between good and evil are not punishable by any criminal prosecution.” R. Burn, 14 KAHLER v. KANSAS BREYER, J., dissenting Abridgment, or the American Justice 300; see also W. Stubbs, Crown Circuit Companion 288 (1 Am. ed. 1816) (“If one that is non compos mentis kill a man, this is no fel- ony; for they have not knowledge of good and evil, nor can have a felonious intent, nor a will or mind to do harm”). And an influential founding-era legal dictionary described the “general rule” that lunatics, “being by reason of their natural disabilities incapable of judging between good and evil, are punishable by no criminal prosecution whatso- ever.” 2 T. Cunningham, New and Complete Law Dictionary (2d corr. ed. 1771). Similarly, the first compre- hensive American text on forensic medicine, published in 13, cited Chief Justice Mansfield’s charge to the jury in Bellingham’s Case for the proposition that “[s]o long as they could distinguish good from evil, so long would they be an- swerable for their conduct.” 1 T. Beck, Elements of Medical Jurisprudence 369. These principles, it concluded, “are doubtless correct, and conducive to the ends of justice.” at 370. Early American jurists closely hewed to these principles. In case after case, judges instructed juries that they must inquire into the defendant’s capacity for moral understand- ing. See, e.g., Meriam’s Case, 6 N. Y. City-Hall Recorder 162 (12) (whether the defendant was “at the time, capable of distinguishing good from evil”); Clark’s Case, 1 N. Y. City-Hall Recorder 176, 177 (1816) (same); Ball’s Case, 2 N. Y. City-Hall Recorder 85, 86 (1817) (same); United (No. 14,811) (CC DC 1818) (whether defendant was “in such a state of mental insanity as not to have been conscious of the moral turpitude of the act”); 155 (17) (whether the prisoner “had not sufficient under- standing to know right from wrong”). C As the foregoing demonstrates, by the time the House of Cite as: 589 U. S. (2020) 15 BREYER, J., dissenting Lords articulated the M’Naghten test in 18, its “essential concept and phraseology” were “already ancient and thor- oughly embedded in the law.” Platt & Diamond 8; see also 1 W. Russell, Crimes and Misdemeanors 8–14 (3d ed. 18) (summarizing the pre-M’Naghten English case law and concluding that the key questions were whether “there be thought and design, a faculty to distinguish the nature of actions, [and] to discern the difference between moral good and evil”). Variations on the M’Naghten rules soon became the predominant standard in the existing states of the United States. Platt & Diamond 7. That tradition has continued, almost without exception, to the present day. It is true that, even following M’Naghten, States contin- ued to experiment with different formulations of the insan- ity defense. See ante, at 19–20. Some adopted the volitional incapacity, or “irresistible-impulse,” But those States understood that innovation to expand, not contract, the scope of the insanity defense, excusing not only defendants who met some variant of the traditional M’Naghten test but also those who understood that their conduct was wrong but were incapable of restraint. See, e.g., ; Bradley v. State, ; State v. Felter, 25 Iowa 67, –83 (1868); 391–392 (1863). So too, the “offspring” or “product” test, which asks whether the defendant’s conduct was attributable to mental disease or defect. The States that adopted this test did so out of the conviction that the M’Naghten test was too re- strictive in its approach to assessing the accused’s capacity for criminal responsibility. See (“We conclude that a broader test should be adopted”); State v. Pike, 49 N. H. 399, 441–442 (1870); see also Reid, Understanding the New Hampshire Doctrine of Criminal Insanity, 69 Yale L. J. 367, 16 KAHLER v. KANSAS BREYER, J., dissenting 386 (1960) (“[T]he New Hampshire doctrine is more lib- eral and has a wider range than M’Naghten rules”). Even as States experimented with broader insanity rules, they retained the core of the traditional common-law defense. In the early 20th century, several States attempted to break with that tradition. The high courts of those States quickly struck down their restrictive laws. As one justice of the Mississippi Supreme Court wrote in 1931: The “common law proceeds upon an idea that before there can be a crime there must be an intelligence capable of comprehending the act prohibited, and the probable consequence of the act, and that the act is wrong.” (Ethridge, J., concurring). Accordingly, Justice Ethridge said, insanity “has always been a complete defense to all crimes from the earliest ages of the common law.” ; 110 P. 1020, 1022–1023 (1910); cf. Today, 45 States, the Federal Government, and the Dis- trict of Columbia continue to recognize an insanity defense that retains some inquiry into the blameworthiness of the accused. Seventeen States and the Federal Government use variants of the M’Naghten test, with its alternative cog- nitive and moral incapacity prongs. Three States have adopted M’Naghten plus the volitional Ten States rec- ognize a defense based on moral incapacity alone. Thirteen States and the District of Columbia have adopted variants of the Model Penal Code test, which combines volitional in- capacity with an expanded version of moral incapacity. See Appendix, infra. New Hampshire alone continues to use the “product” test, asking whether “a mental disease or de- fect caused the charged conduct.” This broad test encompasses “ ‘whether the defendant knew the difference between right and wrong and whether the defendant acted Cite as: 589 U. S. (2020) 17 BREYER, J., dissenting impulsively,’ ” as well as “ ‘whether the defendant was suf- fering from delusions or hallucinations.’ ” And North Dakota uses a unique formulation that asks whether the defendant “lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the con- duct is the result of a loss or serious distortion of the indi- vidual’s capacity to recognize reality.” N. D. Cent. Code Ann. (2012). Of the States that have adopted the M’Naghten or Model Penal Code tests, some interpret knowledge of wrongful- ness to refer to moral wrong, whereas others hold that it means legal wrong. See ante, at 2–3, 20–22. While there is, of course, a logical distinction between those interpreta- tions, there is no indication that it makes a meaningful dif- ference in practice. The two inquiries are closely related and excuse roughly the same universe of defendants. See 1321–1322 (19) (“In most instances, legal wrong is coex- tensive with moral wrong”); (“ ‘[S]ince by far the vast majority of cases in which insanity is pleaded as a defense to criminal prosecutions involves acts which are universally recognized as morally wicked as well as illegal, the hair- splitting distinction between legal and moral wrong need not be given much attention’ ”); (“Knowledge that an act is forbidden by law will in most cases permit the inference of knowledge that, according to the accepted standards of mankind, it is also condemned as an offense against good morals”); see also ALI, Model Penal Code Explanatory Note, p. 164 (1985) (explaining that “few cases are likely to arise in which the variation will be determinative”). 18 KAHLER v. KANSAS BREYER, J., dissenting I A Consider the basic reason that underlies and explains this long legal tradition. That reason reveals that more is at stake than its duration alone. The tradition reflects the fact that a community’s moral code informs its criminal law. As Henry Hart stated it, the very definition of crime is con- duct that merits “a formal and solemn pronouncement of the moral condemnation of the community.” The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 405 (1958). The criminal law does not adopt, nor does it perfectly track, moral law. It is no defense simply to claim that one’s criminal conduct was morally right. But the criminal law nonetheless tries in various ways to prevent the distance between criminal law and morality from becoming too great. In the words of Justice Holmes, a law that “punished conduct [that] would not be blameworthy in the average member of the community would be too severe for that com- munity to bear.” O. Holmes, The Common Law 50 (1881); see also (“[T]o deny that criminal liability is founded on blameworthiness would shock the moral sense of any civilized community”). Sometimes the criminal law seeks to keep its strictures roughly in line with the demands of morality through grants of discretion that will help it to reach appropriate results in individual cases, including special instances where the law points one way and morality the other. Thus, prosecutors need not prosecute. Jurors (however in- structed) may decide to acquit. Judges may exercise the discretion the law allows them to impose a lenient sentence. Executives may grant clemency. And sometimes the law attempts to maintain this bal- ance by developing and retaining a “collection of interlock- ing and overlapping concepts,” including defenses, that will help “assess the moral accountability of an individual for Cite as: 589 U. S. (2020) 19 BREYER, J., dissenting his antisocial deeds.” 535– 536 (1968) (plurality opinion). These concepts and defenses include “actus reus, mens rea, insanity, mistake, justifica- tion, and duress.” As we have recognized, the “process of adjustment” within and among these overlapping legal concepts “has al- ways been thought to be the province of the States.” Matters of degree, specific content, and aptness of applica- tion all may be, and have always been, the subject of legal dispute. But the general purpose—to ensure a rough con- gruence between the criminal law and widely accepted moral sentiments—persists. To gravely undermine the in- sanity defense is to pose a significant obstacle to this basic objective. The majority responds that Kansas has not removed the element of blameworthiness from its treatment of insanity; it has simply made a different judgment about what con- duct is blameworthy. See ante, at 13, n. 7. That is not how the Kansas Supreme Court has characterized its law. See (holding that Kansas law provides for “no consideration,” at the guilt phase, “of whether wrongfulness was inherent in the defendant’s intent”). In any event, as the Court acknowledges, the States’ discretion in this area must be constrained within “broad limits,” ante, at 7, which are de- rived from history and tradition. The question is whether Kansas’ approach transgresses those limits. I doubt that the Court would declare, for example, that a State may do away with the defenses of duress or self-defense on the ground that, in its idiosyncratic judgment, they are not re- quired. With respect to the defense of insanity, I believe that our history shows clearly that the criminal law has al- ways required a higher degree of individual culpability than the modern concept of mens rea. See Part And in my view, Kansas’ departure from this long uniform tradi- tion poses a serious problem. 20 KAHLER v. KANSAS BREYER, J., dissenting B To see why Kansas’ departure is so serious, go back to our two simplified prosecutions: the first of the defendant who, because of serious mental illness, believes the victim is a dog; the second of a defendant who, because of serious men- tal illness, believes the dog commanded him to kill the vic- tim. Now ask, what moral difference exists between the de- fendants in the two examples? Assuming equivalently convincing evidence of mental illness, I can find none at all. In both cases, the defendants differ from ordinary persons in ways that would lead most of us to say that they should not be held morally responsible for their acts. I cannot find one defendant more responsible than the other. And for centuries, neither has the law. More than that, scholars who have studied this subject tell us that examples of the first kind are rare. See Brief for 2 Criminal Law and Mental Health Law Professors as Amici Curiae 12. Others repeat this claim. See Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, ; Morse, Mental Disorder and Criminal Law, 101 J. Crim. L. & C. 885, 933 (2011). That is because mental illness typically does not deprive individuals of the ability to form intent. Rather, it affects their motivations for forming such intent. Brief for 2 Criminal Law and Mental Health Law Profes- sors as Amici Curiae 12. For example, the American Psy- chiatric Association tells us that individuals suffering from mental illness may experience delusions—erroneous per- ceptions of the outside world held with strong conviction. They may believe, incorrectly, that others are threatening them harm (persecutory delusions), that God has com- manded them to engage in certain conduct (religious delu- sions), or that they or others are condemned to a life of suf- fering (depressive delusions). Brief for American Psychiatric Association et al. as Amici Curiae 25–26. Such delusions may, in some cases, lead the patient to behave Cite as: 589 U. S. (2020) 21 BREYER, J., dissenting violently. But they likely would not interfere with his or her perception in such a way as to negate mens rea. See H. R. Rep. No. 98–577, p. 15 n. 23 (1984) (“Mental illness rarely, if ever, renders a person incapable of under- standing what he or she is doing. Mental illness does not, for example, alter the perception of shooting a person to that of shooting a tree.”). Kansas’ abolition of the second part of the M’Naghten test requires conviction of a broad swath of defendants who are obviously insane and would be adjudged not guilty under any traditional form of the defense. This result offends deeply entrenched and widely recognized moral principles underpinning our criminal laws. See, e.g., National Comm’n on Reform of Fed. Crim. Laws, Final Report, Pro- posed New Fed. Crim. Code pp. 40–41 (1971) (to at- tribute guilt to a “manifestly psychotic person” would “be immoral and inconsistent with the aim of a criminal code”); H. R. Rep. No. 98–577, at 7–8 (“[T]he abolition of the affirm- ative insanity defense would alter that fundamental basis of Anglo-American criminal law: the existence of moral cul- pability as a prerequisite for punishment”); ABA Criminal Justice Mental Health Standards pp. 336–338 (1989) (rejecting the mens rea approach “out of hand” as “a jarring reversal of hundreds of years of moral and legal history” that “inhibits if not prevents the exercise of hu- mane judgment that has distinguished our criminal law heritage”). By contrast, the rule adopted by some States that a de- fendant must be acquitted if he was unable to appreciate the legal wrongfulness of his acts, see ante, at 20–22, would likely lead to acquittal in the mine run of such cases. See If that is so, then that rule would not pose the same due process problem as Kansas’ approach. That issue is not before us, as Kansas’ law does not provide even that protection to mentally ill defendants. 22 KAHLER v. KANSAS BREYER, J., dissenting C Kansas and the Solicitor General, in their efforts to jus- tify Kansas’ change, make four important arguments. First, they point to cases in this Court in which we have said that the States have broad leeway in shaping the in- sanity defense. See Leland, ; Clark, 548 U.S. 735. In Leland, we rejected the defendant’s argument that the Constitution required the adoption of the “ ‘irresistible impulse’ ” 3 U.S., at 800–801. Similarly, in Clark, we upheld Arizona’s effort to eliminate the first part of the M’Naghten rule, applicable to defendants whose mental ill- ness deprived them of the ability to know the “ ‘nature and quality of the act,’ ” –748. If Arizona can eliminate the first prong of M’Naghten, Kansas asks, why can Kansas not eliminate the second part? The answer to this question lies in the fact that Arizona, while amending the insanity provisions of its criminal code, did not in practice eliminate the traditional insanity de- fense in any significant part. See n. 20 (reserving the question whether “the Constitution man- dates an insanity defense”). As we pointed out, “cognitive incapacity is itself enough to demonstrate moral incapac- ity.” Evidence that the defendant did not know what he was doing would also tend to establish that he did not know that it was wrong. –754. And Prosecu- tion One (he thought the victim was a dog) would still fail. The ability of the States to refuse to adopt other insanity tests, such as the “irresistible impulse” test or the “product of mental illness” test are also beside the point. See Leland, 3 U.S., at 800–801. Those tests both expand upon M’Naghten’s principles. Their elimination would cut the defense back to what it traditionally has been, not, as here, eliminate its very essence. Second, the United States as amicus curiae suggests that the insanity defense is simply too difficult for juries to ad- minister. Brief for United States as Amicus Curiae 12–13. Cite as: 589 U. S. (2020) 23 BREYER, J., dissenting Without doubt, assessing the defendant’s claim of insanity is difficult. That is one reason I believe that States must remain free to refine and redefine their insanity rules within broad bounds. But juries have been making that de- termination for centuries and continue to do so in 45 States. And I do not see how an administrative difficulty can justify abolishing the heart of the defense. Third, Kansas argues that it has not abolished the insan- ity defense or any significant part of it. It has simply moved the stage at which a defendant can present the full range of mental-capacity evidence to sentencing. See Brief for Re- spondent 8; ante, at 4–5. But our tradition demands that an insane defendant should not be found guilty in the first place. Moreover, the relief that Kansas offers, in the form of sentencing discretion and the possibility of commitment in lieu of incarceration, is a matter of judicial discretion, not of right. See (2014). The insane defendant is, under Kansas law, ex- posed to harsh criminal sanctions up to and including death. And Kansas’ sentencing provisions do nothing to al- leviate the stigma and the collateral consequences of a criminal conviction. Finally, Kansas argues that the insane, provided they are capable of intentional action, are culpable and should be held liable for their antisocial conduct. Brief for Respond- ent 40. To say this, however, is simply to restate the con- clusion for which Kansas argues in this case. It is a conclu- sion that in my view runs contrary to a legal tradition that embodies a fundamental precept of our criminal law and that stretches back, at least, to the origins of our Nation. For these reasons, with respect, I dissent. 24 KAHLER v. KANSAS BREYER Appendix to the, J., dissenting opinion of BREYER, J. APPENDIX M’Naghten State Text Alabama “It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts con- stituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the na- ture and quality or wrongfulness of his acts.” Ala. Code (2015). California “In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a pre- ponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” Cal. Penal Code Ann. (West 2014). Colorado “(1) The applicable test of insanity shall be: “(a) A person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable; except that care should be taken not to confuse such mental disease or defect with moral obliq- uity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil condi- tions, for, when the act is induced by any of these causes, the person is accountable to the law; or “(b) A person who suffered from a condition of mind caused by mental disease or defect that prevented the person from forming a culpable mental state that is an essential element of a crime charged, but care should be taken not to confuse such mental disease or defect with moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions because, when the act is induced by any of these causes, the person is accountable to the law.” Colo. Rev. Stat. (2019). Florida “(1) AFFIRMATIVE DEFENSE.––All persons are pre- sumed to be sane. It is an affirmative defense to a crimi- nal prosecution that, at the time of the commission of the acts constituting the offense, the defendant was insane. Insanity is established when: “(a) The defendant had a mental infirmity, disease, or defect; and “(b) Because of this condition, the defendant: Cite as: 589 U. S. (2020) 25 Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text “1. Did not know what he or she was doing or its conse- quences; or “2. Although the defendant knew what he or she was doing and its consequences, the defendant did not know that what he or she was doing was wrong. “Mental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.” Iowa “A person shall not be convicted of a crime if at the time the crime is committed the person suffers from such a dis- eased or deranged condition of the mind as to render the person incapable of knowing the nature and quality of the act the person is committing or incapable of distinguish- ing between right and wrong in relation to that act.” Iowa Code Minne- “No person having a mental illness or cognitive impair- sota ment so as to be incapable of understanding the proceed- ings or making a defense shall be tried, sentenced, or pun- ished for any crime; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was la- boring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong.” (2019). Missis- “In determining sanity in criminal cases Mississippi uti- sippi lizes the common law M’Naghten Under the M’Naghten test, the accused must be laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did not know it, that he did not know that what he was doing was wrong.” 705–706 (Miss. 2019) (internal quotation marks and foot- note omitted). Missouri “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or de- fect he was incapable of knowing and appreciating the na- ture, quality or wrongfulness of his or her conduct.” Mo. Rev. Stat. Nebraska “Under our current common-law definition, the two re- quirements for the insanity defense are that (1) the de- fendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or that he or she did not know the difference between right and wrong.” 795 N.W.2d 26 KAHLER v. KANSAS Appendix to the, opinion BREYER of BREYER, J. J., dissenting State Text 645, 653 (2011). Nevada “To qualify as being legally insane, a defendant must be in a delusional state such that he cannot know or under- stand the nature and capacity of his act, or his delusion must be such that he cannot appreciate the wrongfulness of his act, that is, that the act is not authorized by law.” 84–85 (2001). New “A person is not criminally responsible for conduct if at Jersey the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.” N. J. Stat. Ann. (West 2015). New York “In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the pro- scribed conduct, he lacked criminal responsibility by rea- son of mental disease or defect. Such lack of criminal re- sponsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either: “1. The nature and consequences of such conduct; or “2. That such conduct was wrong.” N. Y. Penal Law Ann. (West 2009). North “[A]n accused is legally insane and exempt from criminal Carolina responsibility by reason thereof if he commits an act which would otherwise be punishable as a crime, and at the time of so doing is laboring under such a defect of rea- son, from disease of the mind, as to be incapable of know- ing the nature and quality of the act he is doing, or, if he does know this, incapable of distinguishing between right and wrong in relation to such act.” Okla- “Oklahoma uses the M’Naghten test to determine the is- homa sue of sanity at the time of the crime. This Court has held that the M’Naghten insanity test, as applied in Okla- homa, has two prongs. Under the first prong, the defend- ant is considered insane if he is suffering from a mental disability such that he does not know his acts are wrong and he is unable to distinguish right from wrong with re- spect to his acts. Under the second prong, the defendant is considered insane if suffering from a disability of rea- son or disease of the mind such that he does not under- stand the nature or consequences of his acts or omissions. The defendant need only satisfy one of these prongs in order to be found not guilty by reason of insanity.” Cite as: 589 U. S. (2020) 27 Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text (footnotes omitted). Pennsyl- “Common law M’Naghten’s Rule preserved.—Nothing in vania this section shall be deemed to repeal or otherwise abro- gate the common law defense of insanity (M’Naghten’s Rule) in effect in this Commonwealth on the effective date of this section.” (d) (2015). Tennes- “It is an affirmative defense to prosecution that, at the see time of the commission of the acts constituting the of- fense, the defendant, as a result of a severe mental dis- ease or defect, was unable to appreciate the nature or wrongfulness of the defendant’s acts.” Tenn. Code Ann. Washing- “To establish the defense of insanity, it must be shown ton that: “(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that: “(a) He or she was unable to perceive the nature and quality of the act with which he or she is charged; or “(b) He or she was unable to tell right from wrong with reference to the particular act charged.” Wash. Rev. Code (2015). Federal “Affirmative Defense.—It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” 18 U.S. C. M’Naghten plus volitional incapacity State Text Georgia “A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distin- guish between right and wrong in relation to such act, omission, or negligence.” –3–2 (2019). “A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a de- lusional compulsion as to such act which overmastered his will to resist committing the crime.” New “In order to support a verdict of insanity under the Mexico 28 KAHLER v. KANSAS BREYER Appendix to the, J., dissenting opinion of BREYER, J. State Text M’Naghten test, the jury must be satisfied that the de- fendant (1) did not know the nature and quality of the act or (2) did not know that it was wrong. This rule prevailed in New Mexico until when this court in State v. White, 56 N. M. 324, P.2d 727 made a careful analysis of the authorities and made a limited extension of the M’Naghten rule, adding a third ingredient. The court held that if the accused, (3) as a result of disease of the mind ‘was incapable of preventing himself from com- mitting’ the crime, he could be adjudged insane and thereby relieved of legal responsibility for what would otherwise be a criminal act.” State v. Hartley, N. M. 488, 4, Virginia “As applied in Virginia, the defense of insanity provides that a defendant may prove that at the time of the com- mission of the act, he was suffering from a mental disease or defect such that he did not know the nature and quality of the act he was doing, or, if he did know it, he did not know what he was doing was wrong. In addition, we have approved in appropriate cases the granting of an in- struction defining an ‘irresistible impulse’ as a form of le- gal insanity. The irresistible impulse doctrine is applica- ble only to that class of cases where the accused is able to understand the nature and consequences of his act and knows it is wrong, but his mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act.” (2010) (internal quotation marks and citations omitted). Moral incapacity State Text Arizona “A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such se- verity that the person did not know the criminal act was wrong.” –502(A) (2010). Delaware “In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or serious mental disorder, the accused lacked substantial capacity to appreciate the wrongfulness of the accused’s conduct.” Del. Code Ann., Tit. 11, (2015). Illinois “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease Cite as: 589 U. S. (2020) 29 Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text or mental defect, he lacks substantial capacity to appre- ciate the criminality of his conduct.” Ill. Comp. Stat., ch. 720, (West 2017). Indiana “A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or de- fect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.” –41– 3–6(a) (2019). Louisiana “If the circumstances indicate that because of a men- tal disease or mental defect the offender was incapable of distinguishing between right and wrong with refer- ence to the conduct in question, the offender shall be ex- empt from criminal responsibility.” La. Rev. Stat. Ann. Maine “A defendant is not criminally responsible by reason of insanity if, at the time of the criminal conduct, as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the wrongfulness of the criminal conduct.” Me. Rev. Stat. Ann., Tit. 17, Ohio “A person is ‘not guilty by reason of insanity’ relative to a charge of an offense only if the person proves, in the manner specified in section 21.05 of the Revised Code, that at the time of the commission of the offense, the per- son did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.” Ohio Rev. Code Ann. §21.01(14) (Lexis 2014). South “It is an affirmative defense to a prosecution for a Carolina crime that, at the time of the commission of the act con- stituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to rec- ognize the particular act charged as morally or legally wrong.” S. C. Code Ann. (2014). South “ ‘Insanity,’ the condition of a person temporarily or Dakota partially deprived of reason, upon proof that at the time of committing the act, the person was incapable of know- ing its wrongfulness, but not including an abnormality manifested only by repeated unlawful or antisocial be- havior.” S. D. Codified Laws (2017). “Insanity is an affirmative defense to a prosecution for any criminal offense.” Texas “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” (a) (West 2011). 30 KAHLER v. KANSAS Appendix to the, J., BREYER dissenting opinion of BREYER, J. Model Penal Code State Text Arkansas “ ‘Lack of criminal responsibility’ means that due to a mental disease or defect a defendant lacked the capacity at the time of the alleged offense to either: “(A) Appreciate the criminality of his or her conduct; or “(B) Conform his or her conduct to the requirements of the law.” –2–301(6) (Supp. 2019). Connecti- “In any prosecution for an offense, it shall be an affirm- cut ative defense that the defendant, at the time he commit- ted the proscribed act or acts, lacked substantial capac- ity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” Conn. Gen. Stat. (2017). Hawaii “A person is not responsible, under this Code, for con- duct if at the time of the conduct as a result of physical or mental disease, disorder, or defect the person lacks substantial capacity either to appreciate the wrongful- ness of the person’s conduct or to conform the person’s conduct to the requirements of law.” Haw. Rev. Stat. (2014). Kentucky “A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or intellectual disability, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ky. Rev. Stat. Ann. Maryland “A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to: “(1) appreciate the criminality of that conduct; or “(2) conform that conduct to the requirements of law.” Md. Crim. Proc. Code Ann. Massachu- “1. Criminal responsibility. Where a defendant as- setts serts a defense of lack of criminal responsibility and there is evidence at trial that, viewed in the light most favorable to the defendant, would permit a reasonable finder of fact to have a reasonable doubt whether the de- fendant was criminally responsible at the time of the of- fense, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant was crim- Cite as: 589 U. S. (2020) 31 Appendix to the, opinion BREYER J., dissenting of BREYER, J. State Text inally responsible. In this process, we require the Com- monwealth to prove negatives beyond a reasonable doubt: that the defendant did not have a mental disease or defect at the time of the crime and, if that is not dis- proved beyond a reasonable doubt, that no mental dis- ease or defect caused the defendant to lack substantial capacity either to appreciate the criminality of his con- duct or to conform his conduct to the requirements of law.” N.E.3d 22, 28 (internal quotation marks and ci- tation omitted). Michigan “It is an affirmative defense to a prosecution for a criminal offense that the defendant was legally insane when he or she committed the acts constituting the of- fense. An individual is legally insane if, as a result of mental illness as defined in section 400 of the mental health code that person lacks substantial capacity either to appreciate the nature and quality or the wrong- fulness of his or her conduct or to conform his or her con- duct to the requirements of the law.” Mich. Comp. Laws Ann. Oregon “A person is guilty except for insanity if, as a result of a qualifying mental disorder at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.” Ore. Rev. Stat. (2019). Rhode “A person is not responsible for criminal conduct if at the Island time of such conduct, as a result of mental disease or de- fect, his capacity either to appreciate the wrongfulness or his conduct or to conform his conduct to the require- ments of the law were so substantially impaired that he cannot justly be held responsible.” State v. Carpio, A. 3d 1, 12, n. 10 (R. I. 2012) (internal quotation marks omitted). Vermont “The test when used as a defense in criminal cases shall be as follows: “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he or she lacks adequate capacity either to ap- preciate the criminality of his or her conduct or to con- form his or her conduct to the requirements of law.” Vt. Stat. Ann., Tit. 13, (2019). West “When a defendant in a criminal case raises the issue of Virginia insanity, the test of his responsibility for his act is whether, at the time of the commission of the act, it was 32 KAHLER v. KANSAS Appendix to the, J., BREYER opinion of BREYER, J. dissenting State Text the result of a mental disease or defect causing the accused to lack the capacity either to appreciate the wrongfulness of his act or to conform his act to the re- quirements of the law.” 52–53, 784 S.E.2d 7, Wisconsin “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or de- fect the person lacked substantial capacity either to ap- preciate the wrongfulness of his or her conduct or con- form his or her conduct to the requirements of law.” Wis. Stat. Wyoming “A person is not responsible for criminal conduct if at the time of the criminal conduct, as a result of mental illness or deficiency, he lacked substantial capacity ei- ther to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.” Wyo. Stat. Ann. (2019). District of “A person is not responsible for criminal conduct if at the Columbia time of such conduct as a result of a mental disease or defect he lacked substantial capacity either to recognize the wrongfulness of his conduct or to conform his con- duct to the requirements of the law.” Unique formulation State Text New “A defendant asserting an insanity defense must prove Hampshire two elements: first, that at the time he acted, he was suf- fering from a mental disease or defect; and, second, that a mental disease or defect caused his actions.” State v. Fichera, 153 N. H. 588, 593, North “An individual is not criminally responsible for criminal Dakota conduct if, as a result of mental disease or defect existing at the time the conduct occurs: “a. The individual lacks substantial capacity to com- prehend the harmful nature or consequences of the con- duct, or the conduct is the result of a loss or serious dis- tortion of the individual’s capacity to recognize reality; and “b. It is an essential element of the crime charged that the individual act willfully.” N. D. Cent. Code Ann. (2012)

Justice Stevens

majority

Pfaff v. Wells Electronics, Inc.

1998-12-14

https://www.courtlistener.com/opinion/118247/pfaff-v-wells-electronics-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118247/

1998-002

Section 102(b) of the Patent Act of 1952 provides that no person is entitled to patent an "invention" that has been "on sale" more than one year before filing a patent application.[1] We granted certiorari to determine whether the commercial marketing of a newly invented product may mark the beginning of the 1-year period even though the invention has not yet been reduced to practice.[2] I On April 19, 1982, petitioner, Wayne Pfaff, filed an application for a patent on a computer chip socket. Therefore, April 19, 1981, constitutes the critical date for purposes of the on-sale bar of 35 U.S. C. § 102(b); if the 1-year period *58 began to run before that date, Pfaff lost his right to patent his invention. Pfaff commenced work on the socket in November 1980, when representatives of Texas Instruments asked him to develop a new device for mounting and removing semiconductor chip carriers. In response to this request, he prepared detailed engineering drawings that described the design, the dimensions, and the materials to be used in making the socket. Pfaff sent those drawings to a manufacturer in February or March 1981. Prior to March 17, 1981, Pfaff showed a sketch of his concept to representatives of Texas Instruments. On April 8, 1981, they provided Pfaff with a written confirmation of a previously placed oral purchase order for 30,100 of his new sockets for a total price of $91,155. In accord with his normal practice, Pfaff did not make and test a prototype of the new device before offering to sell it in commercial quantities.[3] The manufacturer took several months to develop the customized tooling necessary to produce the device, and Pfaff did not fill the order until July 1981. The evidence therefore indicates that Pfaff first reduced his invention to practice in the summer of 1981. The socket achieved substantial commercial *59 success before Patent No. 4,491,377 (`377 patent) issued to Pfaff on January 1, 1985.[4] After the patent issued, petitioner brought an infringement action against respondent, Wells Electronics, Inc., the manufacturer of a competing socket. Wells prevailed on the basis of a finding of no infringement.[5] When respondent began to market a modified device, petitioner brought this suit, alleging that the modifications infringed six of the claims in the `377 patent. After a full evidentiary hearing before a Special Master,[6] the District Court held that two of those claims (1 and 6) were invalid because they had been anticipated in the prior art. Nevertheless, the court concluded that four other claims (7, 10, 11, and 19) were valid and three (7, 10, and 11) were infringed by various models of respondent's sockets. App. to Pet. for Cert. 21a—22a. Adopting the Special Master's findings, the District Court rejected respondent's § 102(b) defense because Pfaff had filed the application for the `377 patent less than a year after reducing the invention to practice. The Court of Appeals reversed, finding all six claims invalid. 124 F.3d 1429 (CA Fed. 1997). Four of the claims (1, 6, 7, and 10) described the socket that Pfaff had sold to Texas Instruments prior to April 8, 1981. Because that device had been offered for sale on a commercial basis more than one *60 year before the patent application was filed on April 19, 1982, the court concluded that those claims were invalid under § 102(b). That conclusion rested on the court's view that as long as the invention was "substantially complete at the time of sale," the 1-year period began to run, even though the invention had not yet been reduced to practice. Id., at 1434. The other two claims (11 and 19) described a feature that had not been included in Pfaff's initial design, but the Court of Appeals concluded as a matter of law that the additional feature was not itself patentable because it was an obvious addition to the prior art.[7] Given the court's § 102(b) holding, the prior art included Pfaff's first four claims. Because other courts have held or assumed that an invention cannot be "on sale" within the meaning of § 102(b) unless and until it has been reduced to practice, see, e. g., Timely Products Corp. v. Arron, 523 F.2d 288, 299-302 (CA2 1975); Dart Industries, Inc. v. E. I. Du Pont de Nemours & Co., 489 F.2d 1359, 1365, n. 11 (CA7 1973), cert. denied, 417 U.S. 933 (1974), and because the text of § 102(b) makes no reference to "substantial completion" of an invention, we granted certiorari. 523 U.S. 1003 (1998). II The primary meaning of the word "invention" in the Patent Act unquestionably refers to the inventor's conception rather than to a physical embodiment of that idea. The statute does not contain any express requirement that an invention must be reduced to practice before it can be patented. *61 Neither the statutory definition of the term in § 100[8] nor the basic conditions for obtaining a patent set forth in § 101[9] make any mention of "reduction to practice." The statute's only specific reference to that term is found in § 102(g), which sets forth the standard for resolving priority contests between two competing claimants to a patent. That subsection provides: "In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other." Thus, assuming diligence on the part of the applicant, it is normally the first inventor to conceive, rather than the first to reduce to practice, who establishes the right to the patent. It is well settled that an invention may be patented before it is reduced to practice. In 1888, this Court upheld a patent issued to Alexander Graham Bell even though he had filed his application before constructing a working telephone. Chief Justice Waite's reasoning in that case merits quoting at length: "It is quite true that when Bell applied for his patent he had never actually transmitted telegraphically spoken words so that they could be distinctly heard and understood at the receiving end of his line, but in his specification he did describe accurately and with admirable clearness his process, that is to say, the exact *62 electrical condition that must be created to accomplish his purpose, and he also described, with sufficient precision to enable one of ordinary skill in such matters to make it, a form of apparatus which, if used in the way pointed out, would produce the required effect, receive the words, and carry them to and deliver them at the appointed place. The particular instrument which he had, and which he used in his experiments, did not, under the circumstances in which it was tried, reproduce the words spoken, so that they could be clearly understood, but the proof is abundant and of the most convincing character, that other instruments, carefully constructed and made exactly in accordance with the specification, without any additions whatever, have operated and will operate successfully. A good mechanic of proper skill in matters of the kind can take the patent and, by following the specification strictly, can, without more, construct an apparatus which, when used in the way pointed out, will do all that it is claimed the method or process will do . . . . "The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his art to the highest degree of perfection. It is enough if he describes his method with sufficient clearness and precision to enable those skilled in the matter to understand what the process is, and if he points out some practicable way of putting it into operation." The Telephone Cases, 126 U.S. 1, 535-536 (1888).[10] When we apply the reasoning of The Telephone Cases to the facts of the case before us today, it is evident that Pfaff *63 could have obtained a patent on his novel socket when he accepted the purchase order from Texas Instruments for 30,100 units. At that time he provided the manufacturer with a description and drawings that had "sufficient clearness and precision to enable those skilled in the matter" to produce the device. Id., at 536. The parties agree that the sockets manufactured to fill that order embody Pfaff's conception as set forth in claims 1, 6, 7, and 10 of the `377 patent. We can find no basis in the text of § 102(b) or in the facts of this case for concluding that Pfaff's invention was not "on sale" within the meaning of the statute until after it had been reduced to practice. III Pfaff nevertheless argues that long standing precedent, buttressed by the strong interest in providing inventors with a clear standard identifying the onset of the 1-year period, justifies a special interpretation of the word "invention" as used in § 102(b). We are persuaded that this nontextual argument should be rejected. As we have often explained, most recently in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989), the patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time. The balance between the interest in motivating innovation and enlightenment by rewarding invention with patent protection on the one hand, and the interest in avoiding monopolies that unnecessarily stifle competition on the other, has been a feature of the federal patent laws since their inception. As this Court explained in 1871: "Letters patent are not to be regarded as monopolies . . . but as public franchises granted to the inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein *64 mentioned, the exclusive right and liberty to make and use and vend to others to be used their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions, and reducing the same to practice for the public benefit, as contemplated by the Constitution and sanctioned by the laws of Congress." Seymour v. Os- borne, 11 Wall. 516, 533-534. Consistent with these ends, § 102 of the Patent Act serves as a limiting provision, both excluding ideas that are in the public domain from patent protection and confining the duration of the monopoly to the statutory term. See, e. g., Frantz Mfg. Co. v. Phenix Mfg. Co., 457 F.2d 314, 320 (CA7 1972). We originally held that an inventor loses his right to a patent if he puts his invention into public use before filing a patent application. "His voluntary act or acquiescence in the public sale and use is an abandonment of his right." Pennock v. Dialogue, 2 Pet. 1, 24 (1829) (Story, J.). A similar reluctance to allow an inventor to remove existing knowledge from public use undergirds the on-sale bar. Nevertheless, an inventor who seeks to perfect his discovery may conduct extensive testing without losing his right to obtain a patent for his invention—even if such testing occurs in the public eye. The law has long recognized the distinction between inventions put to experimental use and products sold commercially. In 1878, we explained why patentability may turn on an inventor's use of his product. "It is sometimes said that an inventor acquires an undue advantage over the public by delaying to take out a patent, inasmuch as he thereby preserves the monopoly to himself for a longer period than is allowed by the policy of the law; but this cannot be said with justice when the *65 delay is occasioned by a bona fide effort to bring his invention to perfection, or to ascertain whether it will answer the purpose intended. His monopoly only continues for the allotted period, in any event; and it is the interest of the public, as well as himself, that the invention should be perfect and properly tested, before a patent is granted for it. Any attempt to use it for a profit, and not by way of experiment, for a longer pe- riod than two years before the application, would de- prive the inventor of his right to a patent." Elizabeth v. Pavement Co., 97 U.S. 126, 137 (emphasis added). The patent laws therefore seek both to protect the public's right to retain knowledge already in the public domain and the inventor's right to control whether and when he may patent his invention. The Patent Act of 1836, 5 Stat. 117, was the first statute that expressly included an on-sale bar to the issuance of a patent. Like the earlier holding in Pennock, that provision precluded patentability if the invention had been placed on sale at any time before the patent application was filed. In 1839, Congress ameliorated that requirement by enacting a 2-year grace period in which the inventor could file an application. 5 Stat. 353. In Andrews v. Hovey, 123 U.S. 267, 274 (1887), we noted that the purpose of that amendment was "to fix a period of limitation which should be certain"; it required the inventor to make sure that a patent application was filed "within two years from the completion of his invention," ibid. In 1939, Congress reduced the grace period from two years to one year. 53 Stat. 1212. Petitioner correctly argues that these provisions identify an interest in providing inventors with a definite standard for determining when a patent application must be filed. A rule that makes the timeliness of an application depend on the date when an invention is "substantially complete" seriously *66 undermines the interest in certainty.[11] Moreover, such a rule finds no support in the text of the statute. Thus, petitioner's argument calls into question the standard applied by the Court of Appeals, but it does not persuade us that it is necessary to engraft a reduction to practice element into the meaning of the term "invention" as used in § 102(b). The word "invention" must refer to a concept that is complete, rather than merely one that is "substantially complete." It is true that reduction to practice ordinarily provides the best evidence that an invention is complete. But just because reduction to practice is sufficient evidence of completion, it does not follow that proof of reduction to practice is necessary in every case. Indeed, both the facts of The Telephone Cases and the facts of this case demonstrate that one can prove that an invention is complete and ready for patenting before it has actually been reduced to practice.[12] *67 We conclude, therefore, that the on-sale bar applies when two conditions are satisfied before the critical date. First, the product must be the subject of a commercial offer for sale. An inventor can both understand and control the timing of the first commercial marketing of his invention. The experimental use doctrine, for example, has not generated concerns about indefiniteness,[13] and we perceive no reason why unmanageable uncertainty should attend a rule that measures the application of the on-sale bar of § 102(b) against the date when an invention that is ready for patenting is first marketed commercially. In this case the acceptance of the purchase order prior to April 8, 1981, makes it clear that such an offer had been made, and there is no question that the sale was commercial rather than experimental in character. Second, the invention must be ready for patenting. That condition may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to *68 practice the invention.[14] In this case the second condition of the on-sale bar is satisfied because the drawings Pfaff sent to the manufacturer before the critical date fully disclosed the invention. The evidence in this case thus fulfills the two essential conditions of the on-sale bar. As succinctly stated by Learned Hand: "[I]t is a condition upon an inventor's right to a patent that he shall not exploit his discovery competitively after it is ready for patenting; he must content himself with either secrecy, or legal monopoly." Metallizing Engineering Co. v. Kenyon Bearing & Auto Parts Co., 153 F.2d 516, 520 (CA2 1946). The judgment of the Court of Appeals finds support not only in the text of the statute but also in the basic policies underlying the statutory scheme, including § 102(b). When Pfaff accepted the purchase order for his new sockets prior to April 8, 1981, his invention was ready for patenting. The fact that the manufacturer was able to produce the socket using his detailed drawings and specifications demonstrates this fact. Furthermore, those sockets contained all the elements of the invention claimed in the `377 patent. Therefore, Pfaff's `377 patent is invalid because the invention had *69 been on sale for more than one year in this country before he filed his patent application. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Section 102(b) of the Patent Act of 1952 provides that no person is entitled to patent an "invention" that has been "on sale" more than one year before filing a patent application.[1] We granted certiorari to determine whether the commercial marketing of a newly invented product may mark the beginning of the 1-year period even though the invention has not yet been reduced to practice.[2] I On April 19, 1982, petitioner, Wayne Pfaff, filed an application for a patent on a computer chip socket. Therefore, April 19, 1981, constitutes the critical date for purposes of the on-sale bar of 35 U.S. C. 102(b); if the 1-year period *58 began to run before that date, Pfaff lost his right to patent his invention. Pfaff commenced work on the socket in November 1980, when representatives of Texas Instruments asked him to develop a new device for mounting and removing semiconductor chip carriers. In response to this request, he prepared detailed engineering drawings that described the design, the dimensions, and the materials to be used in making the socket. Pfaff sent those drawings to a manufacturer in February or March 1981. Prior to March 17, 1981, Pfaff showed a sketch of his concept to representatives of Texas Instruments. On April 8, 1981, they provided Pfaff with a written confirmation of a previously placed oral purchase order for 30,100 of his new sockets for a total price of $91,155. In accord with his normal practice, Pfaff did not make and test a prototype of the new device before offering to sell it in commercial quantities.[3] The manufacturer took several months to develop the customized tooling necessary to produce the device, and Pfaff did not fill the order until July 1981. The evidence therefore indicates that Pfaff first reduced his invention to practice in the summer of 1981. The socket achieved substantial commercial *59 success before Patent No. 4,491,377 (`377 patent) issued to Pfaff on January 1, 1985.[4] After the patent issued, petitioner brought an infringement action against respondent, Wells Electronics, Inc., the manufacturer of a competing socket. Wells prevailed on the basis of a finding of no infringement.[5] When respondent began to market a modified device, petitioner brought this suit, alleging that the modifications infringed six of the claims in the `377 patent. After a full evidentiary hearing before a Special Master,[6] the District Court held that two of those claims (1 and 6) were invalid because they had been anticipated in the prior art. Nevertheless, the court concluded that four other claims (7, 10, 11, and 19) were valid and three (7, 10, and 11) were infringed by various models of respondent's sockets. App. to Pet. for Cert. 21a—22a. Adopting the Special Master's findings, the District Court rejected respondent's 102(b) defense because Pfaff had filed the application for the `377 patent less than a year after reducing the invention to practice. The Court of Appeals reversed, finding all six claims invalid. Four of the claims (1, 6, 7, and 10) described the socket that Pfaff had sold to Texas Instruments prior to April 8, 1981. Because that device had been offered for sale on a commercial basis more than one *60 year before the patent application was filed on April 19, 1982, the court concluded that those claims were invalid under 102(b). That conclusion rested on the court's view that as long as the invention was "substantially complete at the time of sale," the 1-year period began to run, even though the invention had not yet been reduced to practice. The other two claims (11 and 19) described a feature that had not been included in Pfaff's initial design, but the Court of Appeals concluded as a matter of law that the additional feature was not itself patentable because it was an obvious addition to the prior art.[7] Given the court's 102(b) holding, the prior art included Pfaff's first four claims. Because other courts have held or assumed that an invention cannot be "on sale" within the meaning of 102(b) unless and until it has been reduced to practice, see, e. g., Timely Products ; Dart Industries, cert. denied, and because the text of 102(b) makes no reference to "substantial completion" of an invention, we granted certiorari. II The primary meaning of the word "invention" in the Patent Act unquestionably refers to the inventor's conception rather than to a physical embodiment of that idea. The statute does not contain any express requirement that an invention must be reduced to practice before it can be patented. *61 Neither the statutory definition of the term in 100[8] nor the basic conditions for obtaining a patent set forth in 101[9] make any mention of "reduction to practice." The statute's only specific reference to that term is found in 102(g), which sets forth the standard for resolving priority contests between two competing claimants to a patent. That subsection provides: "In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other." Thus, assuming diligence on the part of the applicant, it is normally the first inventor to conceive, rather than the first to reduce to practice, who establishes the right to the patent. It is well settled that an invention may be patented before it is reduced to practice. In 1888, this Court upheld a patent issued to Alexander Graham Bell even though he had filed his application before constructing a working telephone. Chief Justice Waite's reasoning in that case merits quoting at length: "It is quite true that when Bell applied for his patent he had never actually transmitted telegraphically spoken words so that they could be distinctly heard and understood at the receiving end of his line, but in his specification he did describe accurately and with admirable clearness his process, that is to say, the exact *62 electrical condition that must be created to accomplish his purpose, and he also described, with sufficient precision to enable one of ordinary skill in such matters to make it, a form of apparatus which, if used in the way pointed out, would produce the required effect, receive the words, and carry them to and deliver them at the appointed place. The particular instrument which he had, and which he used in his experiments, did not, under the circumstances in which it was tried, reproduce the words spoken, so that they could be clearly understood, but the proof is abundant and of the most convincing character, that other instruments, carefully constructed and made exactly in accordance with the specification, without any additions whatever, have operated and will operate successfully. A good mechanic of proper skill in matters of the kind can take the patent and, by following the specification strictly, can, without more, construct an apparatus which, when used in the way pointed out, will do all that it is claimed the method or process will do "The law does not require that a discoverer or inventor, in order to get a patent for a process, must have succeeded in bringing his art to the highest degree of perfection. It is enough if he describes his method with sufficient clearness and precision to enable those skilled in the matter to understand what the process is, and if he points out some practicable way of putting it into operation." The Telephone Cases,[10] When we apply the reasoning of The Telephone Cases to the facts of the case before us today, it is evident that Pfaff *63 could have obtained a patent on his novel socket when he accepted the purchase order from Texas Instruments for 30,100 units. At that time he provided the manufacturer with a description and drawings that had "sufficient clearness and precision to enable those skilled in the matter" to produce the device. The parties agree that the sockets manufactured to fill that order embody Pfaff's conception as set forth in claims 1, 6, 7, and 10 of the `377 patent. We can find no basis in the text of 102(b) or in the facts of this case for concluding that Pfaff's invention was not "on sale" within the meaning of the statute until after it had been reduced to practice. III Pfaff nevertheless argues that long standing precedent, buttressed by the strong interest in providing inventors with a clear standard identifying the onset of the 1-year period, justifies a special interpretation of the word "invention" as used in 102(b). We are persuaded that this nontextual argument should be rejected. As we have often explained, most recently in Bonito Boats, the patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time. The balance between the interest in motivating innovation and enlightenment by rewarding invention with patent protection on the one hand, and the interest in avoiding monopolies that unnecessarily stifle competition on the other, has been a feature of the federal patent laws since their inception. As this Court explained in 1871: "Letters patent are not to be regarded as monopolies but as public franchises granted to the inventors of new and useful improvements for the purpose of securing to them, as such inventors, for the limited term therein *64 mentioned, the exclusive right and liberty to make and use and vend to others to be used their own inventions, as tending to promote the progress of science and the useful arts, and as matter of compensation to the inventors for their labor, toil, and expense in making the inventions, and reducing the same to practice for the public benefit, as contemplated by the Constitution and sanctioned by the laws of Congress." Consistent with these ends, 102 of the Patent Act serves as a limiting provision, both excluding ideas that are in the public domain from patent protection and confining the duration of the monopoly to the statutory term. See, e. g., Frantz Mfg. We originally held that an inventor loses his right to a patent if he puts his invention into public use before filing a patent application. "His voluntary act or acquiescence in the public sale and use is an abandonment of his right." A similar reluctance to allow an inventor to remove existing knowledge from public use undergirds the on-sale bar. Nevertheless, an inventor who seeks to perfect his discovery may conduct extensive testing without losing his right to obtain a patent for his invention—even if such testing occurs in the public eye. The law has long recognized the distinction between inventions put to experimental use and products sold commercially. In 1878, we explained why patentability may turn on an inventor's use of his product. "It is sometimes said that an inventor acquires an undue advantage over the public by delaying to take out a patent, inasmuch as he thereby preserves the monopoly to himself for a longer period than is allowed by the policy of the law; but this cannot be said with justice when the *65 delay is occasioned by a bona fide effort to bring his invention to perfection, or to ascertain whether it will answer the purpose intended. His monopoly only continues for the allotted period, in any event; and it is the interest of the public, as well as himself, that the invention should be perfect and properly tested, before a patent is granted for it. Any attempt to use it for a profit, and not by way of experiment, for a longer pe- riod than two years before the application, would de- prive the inventor of his right to a patent." (emphasis added). The patent laws therefore seek both to protect the public's right to retain knowledge already in the public domain and the inventor's right to control whether and when he may patent his invention. The Patent Act of 1836, was the first statute that expressly included an on-sale bar to the issuance of a patent. Like the earlier holding in Pennock, that provision precluded patentability if the invention had been placed on sale at any time before the patent application was filed. In 1839, Congress ameliorated that requirement by enacting a 2-year grace period in which the inventor could file an application. In we noted that the purpose of that amendment was "to fix a period of limitation which should be certain"; it required the inventor to make sure that a patent application was filed "within two years from the completion of his invention," In 1939, Congress reduced the grace period from two years to one year. Petitioner correctly argues that these provisions identify an interest in providing inventors with a definite standard for determining when a patent application must be filed. A rule that makes the timeliness of an application depend on the date when an invention is "substantially complete" seriously *66 undermines the interest in certainty.[11] Moreover, such a rule finds no support in the text of the statute. Thus, petitioner's argument calls into question the standard applied by the Court of Appeals, but it does not persuade us that it is necessary to engraft a reduction to practice element into the meaning of the term "invention" as used in 102(b). The word "invention" must refer to a concept that is complete, rather than merely one that is "substantially complete." It is true that reduction to practice ordinarily provides the best evidence that an invention is complete. But just because reduction to practice is sufficient evidence of completion, it does not follow that proof of reduction to practice is necessary in every case. Indeed, both the facts of The Telephone Cases and the facts of this case demonstrate that one can prove that an invention is complete and ready for patenting before it has actually been reduced to practice.[12] *67 We conclude, therefore, that the on-sale bar applies when two conditions are satisfied before the critical date. First, the product must be the subject of a commercial offer for sale. An inventor can both understand and control the timing of the first commercial marketing of his invention. The experimental use doctrine, for example, has not generated concerns about indefiniteness,[13] and we perceive no reason why unmanageable uncertainty should attend a rule that measures the application of the on-sale bar of 102(b) against the date when an invention that is ready for patenting is first marketed commercially. In this case the acceptance of the purchase order prior to April 8, 1981, makes it clear that such an offer had been made, and there is no question that the sale was commercial rather than experimental in character. Second, the invention must be ready for patenting. That condition may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to *68 practice the invention.[14] In this case the second condition of the on-sale bar is satisfied because the drawings Pfaff sent to the manufacturer before the critical date fully disclosed the invention. The evidence in this case thus fulfills the two essential conditions of the on-sale bar. As succinctly stated by Learned Hand: "[I]t is a condition upon an inventor's right to a patent that he shall not exploit his discovery competitively after it is ready for patenting; he must content himself with either secrecy, or legal monopoly." Metallizing Engineering The judgment of the Court of Appeals finds support not only in the text of the statute but also in the basic policies underlying the statutory scheme, including 102(b). When Pfaff accepted the purchase order for his new sockets prior to April 8, 1981, his invention was ready for patenting. The fact that the manufacturer was able to produce the socket using his detailed drawings and specifications demonstrates this fact. Furthermore, those sockets contained all the elements of the invention claimed in the `377 patent. Therefore, Pfaff's `377 patent is invalid because the invention had *69 been on sale for more than one year in this country before he filed his patent application. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Breyer

majority

Dickinson v. Zurko

1999-06-10

https://www.courtlistener.com/opinion/118302/dickinson-v-zurko/

https://www.courtlistener.com/api/rest/v3/clusters/118302/

1998-071

The Administrative Procedure Act (APA) sets forth standards governing judicial review of findings of fact made by federal administrative agencies. 5 U.S. C. § 706. We must decide whether § 706 applies when the Federal Circuit reviews findings of fact made by the Patent and Trademark Office (PTO). We conclude that it does apply, and the Federal Circuit must use the framework set forth in that section. I Section 706, originally enacted in 1946, sets forth standards that govern the "Scope" of court "review" of, e. g., agency factfinding (what we shall call court/agency review). It says that a "reviewing court shall— . . . . . "(2) hold unlawful and set aside agency . . . findings. . . found to be— "(A) arbitrary, capricious, [or] an abuse of discretion, or . . . . . . . . "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; . . . . . . . . *153 "In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party . . . ." Federal Rule of Civil Procedure 52(a) sets forth standards that govern appellate court review of findings of fact made by a district court judge (what we shall call court/court review). It says that the appellate court shall set aside those findings only if they are "clearly erroneous." Traditionally, this court/court standard of review has been considered somewhat stricter (i. e., allowing somewhat closer judicial review) than the APA's court/agency standards. 2 K. Davis & R. Pierce, Administrative Law Treatise § 11.2, p. 174 (3d ed. 1994) (hereinafter Davis & Pierce). The Court of Appeals for the Federal Circuit believes that it should apply the "clearly erroneous" standard when it reviews findings of fact made by the PTO. In re Zurko, 142 F.3d 1447, 1459 (1998) (case below). The Commissioner of Patents, the PTO's head, believes to the contrary that ordinary APA court/agency standards apply. See, e. g., In re Kemps, 97 F.3d 1427, 1430-1431 (CA Fed. 1996); In re Napier, 55 F.3d 610, 614 (CA Fed. 1995); In re Brana, 51 F.3d 1560, 1568-1569 (CA Fed. 1995). The case before us tests these two competing legal views. Respondents applied for a patent upon a method for increasing computer security. The PTO patent examiner concluded that respondents' method was obvious in light of prior art, and so it denied the application. See 35 U.S. C. § 103 (1994 ed., Supp. III). The PTO's review board (the Board of Patent Appeals and Interferences) upheld the examiner's decision. Respondents sought review in the Federal Circuit, where a panel treated the question of what the prior art teaches as one of fact, and agreed with respondents that the PTO's factual finding was "clearly erroneous." In re Zurko, 111 F.3d 887, 889, and n. 2 (1997). The Federal Circuit, hoping definitively to resolve the review-standard controversy, then heard the matter en banc. *154 After examining relevant precedents, the en banc court concluded that its use of the stricter court/court standard was legally proper. The Solicitor General, representing the Commissioner of Patents, sought certiorari. We granted the writ in order to decide whether the Federal Circuit's review of PTO factfinding must take place within the framework set forth in the APA. II The parties agree that the PTO is an "agency" subject to the APA's constraints, that the PTO's finding at issue in this case is one of fact, and that the finding constitutes "agency action." See 5 U.S. C. § 701 (defining "agency" as an "authority of the Government of the United States"); § 706 (applying APA "Scope of review" provisions to "agency action"). Hence a reviewing court must apply the APA's court/agency review standards in the absence of an exception. The Federal Circuit rests its claim for an exception upon § 559. That section says that the APA does "not limit or repeal additional requirements . . . recognized by law." In the Circuit's view: (1) at the time of the APA's adoption, in 1946, the Court of Customs and Patent Appeals (CCPA), a Federal Circuit predecessor, applied a court/court "clearly erroneous" standard; (2) that standard was stricter than ordinary court/agency review standards; and (3) that special tradition of strict review consequently amounted to an "additional requirement" that under § 559 trumps the requirements imposed by § 706. Recognizing the importance of maintaining a uniform approach to judicial review of administrative action, see, e. g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951); 92 Cong. Rec. 5654 (1946) (statement of Rep. Walter), we have closely examined the Federal Circuit's claim for an exception to that uniformity. In doing so, we believe that respondents must show more than a possibility of a heightened *155 standard, and indeed more than even a bare preponderance of evidence in their favor. Existence of the additional requirement must be clear. This is suggested both by the phrase "recognized by law" and by the congressional specification in the APA that "[n]o subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly." § 12, 60 Stat. 244, 5 U.S. C. § 559. A statutory intent that legislative departure from the norm must be clear suggests a need for similar clarity in respect to grandfathered common-law variations. The APA was meant to bring uniformity to a field full of variation and diversity. It would frustrate that purpose to permit divergence on the basis of a requirement "recognized" only as ambiguous. In any event, we have examined the 89 cases which, according to respondents and supporting amici, embody the pre-APA standard of review. See App. to Brief for New York Intellectual Property Law Association as Amicus Curiae 1a-6a (collecting cases), and we conclude that those cases do not reflect a well-established stricter court/court standard of judicial review for PTO factfinding, which circumstance fatally undermines the Federal Circuit's conclusion. The 89 pre-APA cases all involve CCPA review of a PTO administrative decision, which either denied a patent or awarded priority to one of several competing applicants. See 35 U.S. C. § 59a (1934 ed.) (granting CCPA review authority over PTO decisions); 35 U.S. C. § 141 (current grant of review authority to the Federal Circuit). The major consideration that favors the Federal Circuit's view consists of the fact that 23 of the cases use words such as "clear case of error" or "clearly wrong" to describe the CCPA's review standard, while the remainder use words such as "manifest error," which might be thought to mean the same thing. See App. to Brief for New York Intellectual Property Law Association as Amicus Curiae 1a-6a. When the CCPA decided many of these cases during the 1930's and early 1940's, *156 legal authorities had begun with increasing regularity to use the term "clearly erroneous" to signal court/court review, Fed. Rule Civ. Proc. 52(a) (adopted in 1937), and the term "substantial evidence" to signal less strict court/agency review. Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, 58 Harv. L. Rev. 70, 88 (1944) (describing congressional debates in which members argued for and against applying the "clearly erroneous" standard to agency review "precisely because it would give administrative findings less finality than they enjoyed under the `substantial evidence' rule"). Yet the presence of these phrases is not conclusive. The relevant linguistic conventions were less firmly established before adoption of the APA than they are today. At that time courts sometimes used words such as "clearly erroneous" to describe less strict court/agency review standards. See, e. g., Polish National Alliance v. NLRB, 136 F.2d 175, 181 (CA7 1943); New York Trust Co. v. SEC, 131 F.2d 274, 275 (CA2 1942), cert. denied, 318 U.S. 786 (1943); Hall v. Commissioner, 128 F.2d 180, 182 (CA7 1942); First National Bank of Memphis v. Commissioner, 125 F.2d 157 (CA6 1942) (per curiam); NLRB v. Algoma Plywood & Veneer Co., 121 F.2d 602, 606 (CA7 1941). Other times they used words such as "substantial evidence" to describe stricter court/ court review (including appeals in patent infringement cases challenging district court factfinding). See, e. g., Cornell v. Chase Brass & Copper Co., 142 F.2d 157, 160 (CA2 1944); Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 139 F.2d 473, 475 (CA6 1943), aff'd, 324 U.S. 320 (1945); Gordon Form Lathe Co. v. Ford Motor Co., 133 F.2d 487, 496-497 (CA6), aff'd, 320 U.S. 714 (1943); Electro Mfg. Co. v. Yellin, 132 F.2d 979, 981 (CA7 1943); Ajax Hand Brake Co. v. Superior Hand Brake Co., 132 F.2d 606, 609 (CA7 1943); Galion Iron Works & Mfg. Co. v. Beckwith Machinery Co., 105 F.2d 941, 942 (CA3 1939). Indeed, this Court itself on at least one occasion used the words "substantial evidence" *157 to explain why it would not disturb a trial court's factual findings. Borden's Farm Products Co. v. Ten Eyck, 297 U.S. 251, 261 (1936); see also Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 420 (1937) (accepting trial court's findings of fact because they have "substantial support in the record"). Nor is the absence of the words "substantial evidence" in the CCPA's cases especially significant. Before the APA, the use of that term to describe court/agency review proceeded by fits and starts, with the standardization of the term beginning to take hold only after Congress began using it (or the like) in various federal statutes. For example, this Court first used the phrase "substantial evidence" in the agency context to describe its approach to the Interstate Commerce Commission's (ICC's) factual findings, ICC v. Union Pacific R. Co., 222 U.S. 541, 548 (1912), even though the underlying statute simply authorized a court of competent jurisdiction to suspend or set aside orders of the Commission, § 12, 36 Stat. 551. The Court did not immediately grant the Federal Trade Commission the same leeway it granted the ICC, see FTC v. Curtis Publishing Co., 260 U.S. 568, 580 (1923), even though the underlying Act used language to which the phrase "substantial evidence" might have applied, see § 5, 38 Stat. 720 (the "findings of the commission as to the facts, if supported by testimony, shall be conclusive"). As the words "substantial evidence" began to appear more often in statutes, the Court began to use those same words in describing review standards, sometimes supplying the modifier "substantial" when Congress had left it out. See, e. g., Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see Stason, "Substantial Evidence" in Administrative Law, 89 U. Pa. L. Rev. 1026, 1026-1028 (1941) (collecting statutes); see also Dobson v. Commissioner, 320 U.S. 489, 499 (1943) (speaking generally of the "theoretical and practical reason[s] for . . . [crediting] administrative decisions"). The patent statutes, however, did not and do not *158 use the term "substantial evidence" or any other term to describe the standard of court review. 35 U.S. C. §§ 61, 62 (1934 ed.). Indeed, it apparently remains disputed to this day (a dispute we need not settle today) precisely which APA standard—"substantial evidence" or "arbitrary, capricious, abuse of discretion"—would apply to court review of PTO factfinding. See 5 U.S. C. § 706(2)(E) (applying the term "substantial evidence" where agency factfinding takes place "on the record"); see also Association of Data Processing Service Orgs., Inc. v. Board of Governors of Federal Reserve System, 745 F.2d 677, 683-684 (CADC 1984) (Scalia, J.) (finding no difference between the APA's "arbitrary, capricious" standard and its "substantial evidence" standard as applied to court review of agency factfinding.) Further, not one of the 89 opinions actually uses the precise words "clear error" or "clearly erroneous," which are terms of art signaling court/court review. Most of the 89 opinions use words like "manifest error," which is not now such a term of art. At the same time, precedent from this Court undermines the Federal Circuit's claim that the phrases "clearly wrong" or "manifest error" signal court/court review. The Federal Circuit traced its standard of review back to Morgan v. Daniels, 153 U.S. 120 (1894), which it characterized as the foundation upon which the CCPA later built its review standards. 142 F.3d, at 1453-1454. We shall describe that case in some detail. Morgan arose out of a Patent Office interference proceeding—a proceeding to determine which of two claimants was the first inventor. The Patent Office decided the factual question of "priority" in favor of one claimant; the Circuit Court, deciding the case "without any additional testimony," 153 U.S., at 122, reversed the Patent Office's factual finding and awarded the patent to the other claimant. This Court in turn reversed the Circuit Court, thereby restoring the Patent Office decision. *159 "What," asked Justice Brewer for the Court, "is the rule which should control the [reviewing] court in the determination of this case?" Ibid. Is it that the Patent Office decision "should stand unless the testimony shows beyond any reasonable doubt that the plaintiff was the first inventor"? Id., at 123. The Court then cited two cases standing for such a "reasonable doubt" standard. Ibid. (citing Cantrell v. Wallick, 117 U.S. 689, 695 (1886), and Coffin v. Ogden, 18 Wall. 120, 124 (1874)). The Court found the two cases "closely in point." 153 U.S., at 123. Justice Brewer wrote that a person "challenging the priority awarded by the Patent Office . . . should . . . be held to as strict proof. " Ibid. (emphasis added). The Court, pointing out that the Circuit Court had used language "not quite so strong" (namely, "a clear and undoubted preponderance of proof"), thought that the Circuit Court's standard sounded more like the rule used by "an appellate court in reviewing findings of fact made by the trial court." Ibid. The Court then wrote: "But this is something more than a mere appeal. It is an application to the court to set aside the action of one of the executive departments of the government.. . . A new proceeding is instituted in the courts . . . to set aside the conclusions reached by the administrative department . . . . It is . . . not to be sustained by a mere preponderance of evidence. . . . It is a controversy between two individuals over a question of fact which has once been settled by a special tribunal, entrusted with full power in the premises. As such it might be well argued, were it not for the terms of this statute, that the decision of the patent office was a finality upon every matter of fact." Id., at 124 (emphasis added). The Court, in other words, reasoned strongly that a court/ court review standard is not proper; that standard is too strict; a somewhat weaker standard of review is appropriate. *160 We concede that the Court also used language that could be read as setting forth a court/court standard of review. It said, for example, that the "Patent Office [decision] must be accepted as controlling upon that question of fact . . .unless the contrary is established by testimony which . . . carries thorough conviction. . . . [I]f doubtful, the decision of the Patent Office must control." Id., at 125 (emphasis added). It added that the testimony was "not . . . sufficient to produce a clear conviction that the Patent Office made a mistake." Id., at 129 (emphasis added). But the Court did not use the emphasized words today; it used those words more than 100 years ago. And its reasoning makes clear that it meant those words to stand for a court/agency review standard, a standard weaker than the standard used by "an appellate court in reviewing findings of fact made by the trial court." Id., at 123. The opinions in the 89 CCPA cases, cataloged in the Appendix to this opinion, reveal the same pattern. They use words such as "manifest error" or "clearly wrong." But they use those words to explain why they give so much, not so little, deference to agency factfinding. And, their further explanations, when given, indicate that they had court/ agency, not court/court, review in mind. In nearly half of the cases, the CCPA explains why it uses its "manifest error" standard by pointing out that the PTO is an expert body, or that the PTO can better deal with the technically complex subject matter, and that the PTO consequently deserves deference. In more than three-fourths of the cases the CCPA says that it should defer to PTO factfinding because two (and sometimes more) PTO tribunals had reviewed the matter and agreed about the factual finding. These reasons are reasons that courts and commentators have long invoked to justify deference to agency factfinding. See Universal Camera, 340 U. S., at 496-497 (intraagency *161 agreement); NLRB v. Link-Belt Co., 311 U.S. 584, 597 (1941) (expertise); Rochester Telephone Corp. v. United States, 307 U.S. 125, 145-146 (1939) (expertise); ICC v. Louisville & Nashville R. Co., 227 U.S. 88, 98 (1913) (expertise); Stern, 58 Harv. L. Rev., at 81-82 (expertise); 2 Davis & Pierce § 11.2, at 178-181 (intraagency agreement). They are not the reasons courts typically have given for deferring to factfinding made by a lower court judge. See, e. g., Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 623 (1993); Stern, supra, at 82-83 (trial court advantages lie in, e. g., evaluation of witness, not comparative expertise). And we think it also worth noting, in light of the pre-APA movement toward standardization discussed above, supra, at 157, that the CCPA began to refer more frequently to technical complexity and agency expertise as time marched closer to 1946. Out of the 45 cases in our sample decided between 1929 and 1936, 40% (18 of 45) specifically referred to technical complexity. That percentage increased to 57% (25 of 44) for the years 1937 to 1946. Given the CCPA's explanations, the review standard's origins, and the nondeterminative nature of the phrases, we cannot agree with the Federal Circuit that in 1946, when Congress enacted the APA, the CCPA "recognized" the use of a stricter court/court, rather than a less strict court/ agency, review standard for PTO decisions. Hence the Federal Circuit's review of PTO findings of fact cannot amount to an "additional requiremen[t] . . . recognized by law." 5 U.S. C. § 559. III The Federal Circuit also advanced several policy reasons which in its view militate against use of APA standards of review. First, it says that both bench and bar have now become used to the Circuit's application of a "clearly erroneous" standard that implies somewhat stricter court/court review. It says that change may prove needlessly disruptive. *162 142 F. 3d, at 1457-1458. Supporting amici add that it is better that the matter remain "`settled than that it be settled right.' " Brief for Patent, Trademark & Copyright Section of the Bar Association of the District of Columbia as Amicus Curiae 23 (quoting Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 424 (1986)). This Court, however, has not previously settled the matter. The Federal Circuit's standard would require us to create § 559 precedent that itself could prove disruptive by too readily permitting other agencies to depart from uniform APA requirements. And in any event we believe the Circuit overstates the difference that a change of standard will mean in practice. This Court has described the APA court/agency "substantial evidence" standard as requiring a court to ask whether a "reasonable mind might accept" a particular evidentiary record as "adequate to support a conclusion." Consolidated Edison, 305 U. S., at 229. It has described the court/court "clearly erroneous" standard in terms of whether a reviewing judge has a "definite and firm conviction" that an error has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). And it has suggested that the former is somewhat less strict than the latter. Universal Camera, 340 U. S., at 477, 488 (analogizing "substantial evidence" test to review of jury findings and stating that appellate courts must respect agency expertise). At the same time the Court has stressed the importance of not simply rubber-stamping agency factfinding. Id., at 490. The APA requires meaningful review; and its enactment meant stricter judicial review of agency factfinding than Congress believed some courts had previously conducted. Ibid. The upshot in terms of judicial review is some practical difference in outcome depending upon which standard is used. The court/agency standard, as we have said, is somewhat less strict than the court/court standard. But the difference *163 is a subtle one—so fine that (apart from the present case) we have failed to uncover a single instance in which a reviewing court conceded that use of one standard rather than the other would in fact have produced a different outcome. Cf. International Brotherhood of Electrical Workers v. NLRB, 448 F.2d 1127, 1142 (CADC 1971) (Leventhal, J., dissenting) (wrongly believing—and correcting himself—that he had found the "case dreamed of by law school professors" where the agency's findings, though "clearly erroneous," were "nevertheless" supported by "substantial evidence"). The difficulty of finding such a case may in part reflect the basic similarity of the reviewing task, which requires judges to apply logic and experience to an evidentiary record, whether that record was made in a court or by an agency. It may in part reflect the difficulty of attempting to capture in a form of words intangible factors such as judicial confidence in the fairness of the factfinding process. Universal Camera, supra, at 489; Jaffe, Judicial Review: "Substantial Evidence on the Whole Record," 64 Harv. L. Rev. 1233, 1245 (1951). It may in part reflect the comparatively greater importance of case-specific factors, such as a finding's dependence upon agency expertise or the presence of internal agency review, which factors will often prove more influential in respect to outcome than will the applicable standard of review. These features of review underline the importance of the fact that, when a Federal Circuit judge reviews PTO factfinding, he or she often will examine that finding through the lens of patent-related experience—and properly so, for the Federal Circuit is a specialized court. That comparative expertise, by enabling the Circuit better to understand the basis for the PTO's finding of fact, may play a more important role in assuring proper review than would a theoretically somewhat stricter standard. *164 Moreover, if the Circuit means to suggest that a change of standard could somehow immunize the PTO's fact-related "reasoning" from review, 142 F.3d, at 1449-1450, we disagree. A reviewing court reviews an agency's reasoning to determine whether it is "arbitrary" or "capricious," or, if bound up with a record-based factual conclusion, to determine whether it is supported by "substantial evidence." E. g., SEC v. Chenery Corp., 318 U.S. 80, 89-93 (1943). Second, the Circuit and its supporting amici believe that a change to APA review standards will create an anomaly. An applicant denied a patent can seek review either directly in the Federal Circuit, see 35 U.S. C. § 141, or indirectly by first obtaining direct review in federal district court, see § 145. The first path will now bring about Federal Circuit court/agency review; the second path might well lead to Federal Circuit court/court review, for the Circuit now reviews federal district court factfinding using a "clearly erroneous" standard. Gould v. Quigg, 822 F.2d 1074, 1077 (1987). The result, the Circuit claims, is that the outcome may turn upon which path a disappointed applicant takes; and it fears that those applicants will often take the more complicated, timeconsuming indirect path in order to obtain stricter judicial review of the PTO's determination. We are not convinced, however, that the presence of the two paths creates a significant anomaly. The second path permits the disappointed applicant to present to the court evidence that the applicant did not present to the PTO. Ibid. The presence of such new or different evidence makes a factfinder of the district judge. And nonexpert judicial factfinding calls for the court/court standard of review. We concede that an anomaly might exist insofar as the district judge does no more than review PTO factfinding, but nothing in this opinion prevents the Federal Circuit from adjusting related review standards where necessary. Cf. Fregeau v. Mossinghoff, 776 F.2d 1034, 1038 (CA Fed. 1985) (harmonizing review standards). *165 Finally, the Circuit reasons that its stricter court/court review will produce better agency factfinding. It says that the standard encourages the creation of "administrative records that more fully describe the metes and bounds of the patent grant" and "help avoid situations where board fact finding on matters such as anticipation or the factual inquiries underlying obviousness become virtually unreviewable." 142 F.3d, at 1458. Neither the Circuit nor its supporting amici, however, have explained convincingly why direct review of the PTO's patent denials demands a stricter factrelated review standard than is applicable to other agencies. Congress has set forth the appropriate standard in the APA. For the reasons stated, we have not found circumstances that justify an exception. For these reasons, the judgment of the Federal Circuit is reversed. We remand the case for further proceedings consistent with this opinion. So ordered. APPENDIX TO OPINION OF THE COURT Review of 89 Pre-APA CCPA Patent Cases Reciting "Clear" or "Manifest" Error Standard Cases Referring to both Technical Complexity/Agency Expertise and the Agreement (Disagreement) Within the Agency Stern v. Schroeder, 17 Cow. C. P. A. 670, 674, 36 F.2d 515, 517 (1929) In re Ford, 17 Cow. C. P. A. 893, 894, 38 F.2d 525, 526 (1930) In re Demarest, 17 Cow. C. P. A. 904, 906, 38 F.2d 895, 896 (1930) In re Wietzel, 17 Cow. C. P. A. 1079, 1082, 39 F.2d 669, 671 (1930) In re Anhaltzer, 18 Cow. C. P. A. 1181, 1184, 48 F.2d 657, 658 (1931) *166 Dorer v. Moody, 18 Cow. C. P. A. 1188, 1190, 48 F.2d 388, 389 (1931) In re Hornsey, 18 Cow. C. P. A. 1222, 1224, 48 F.2d 911, 912 (1931) Rowe v.Holtz, 19 Cow. C. P. A. 970, 974, 55 F.2d 468, 470471 (1932) In re Fessenden, 19 Cow. C. P. A. 1048, 1050-1051, 56 F.2d 669, 670 (1932) Martin v. Friendly, 19 Cow. C. P. A. 1181, 1182-1183, 58 F.2d 421, 422 (1932) In re Dubilier, 20 Cow. C. P. A. 809, 815, 62 F.2d 374, 377 (1933) In re Alden, 20 Cow. C. P. A. 1083, 1084-1085, 65 F.2d 136, 137 (1933) Farmer v. Pritchard, 20 Cow. C. P. A. 1096, 1101, 65 F.2d 165, 168 (1933) In re Pierce, 20 Cow. C. P.A. 1170, 1175, 65 F.2d 271, 274 (1933) Angell v.Morin, 21 Cow. C. P. A. 1018, 1024, 69 F.2d 646, 649 (1934) Daley v.Trube, 24 Cow. C. P. A. 964, 971, 88 F.2d 308, 312 (1937) Coast v. Dubbs, 24 Cow. C. P. A. 1023, 1031-1032, 88 F.2d 734, 739 (1937) Bryson v.Clarke, 25 Cow. C. P. A. 719, 721,92 F. 2d 720, 722 (1937) Brand v.Thomas, 25 Cow. C. P.A. 1053, 1055, 96 F.2d 301, 302 (1938) Creed v.Potts, 25 Cow. C. P. A. 1084, 1089, 96 F.2d 317, 321 (1938) In re Cassidy, 25 Cow. C. P. A. 1282, 1285, 97 F.2d 93, 95 (1938) Krebs v. Melicharek, 25 Cow. C. P. A. 1362, 1365-1366, 97 F.2d 477, 479 (1938) Parker v.Ballantine, 26 Cow. C. P. A. 799, 804, 101 F.2d 220, 223 (1939) (disagreement) *167 Reed v. Edwards, 26 Cow. C. P. A. 901, 904, 101 F.2d 550, 552 (1939) Hill v. Casler, 26 Cow. C. P.A. 930,932, 102 F.2d 219, 221 (1939) Tears v. Robinson, 26 Cow. C.P. A. 1391, 1392, 104 F.2d 813, 814 (1939) In re Bertsch, 27 Cow. C. P. A. 760, 763-764, 107 F.2d 828, 831 (1939) In re Wuertz, 27 Cow. C. P. A. 1039, 1046, 110 F.2d 854, 857 (1940) In re Kaplan, 27 Cow. C. P. A. 1072, 1075, 110 F.2d 670, 672 (1940) Prahl v.Redman, 28 Cow. C.P. A. 937, 940, 117 F.2d 1018, 1021 (1941) In re Bertsch, 30 Cow. C. P. A. 813, 815-816, 132 F.2d 1014, 1016 (1942) In re Stacy, 30 Cow. C. P. A. 972, 974, 135 F.2d 232, 233 (1943) Poulsen v. McDowell, 31 Cow. C. P. A. 1006, 1011, 142 F.2d 267, 270 (1944) Pinkerton v.Stahly, 32 Cow. C. P. A. 723, 728, 144 F.2d 881, 885 (1944) Cases Referring to Technical Complexity/Agency Expertise In re Engelhardt, 17 Cow. C.P. A. 1244, 1251, 40 F.2d 760, 764 (1930) In re McDonald, 18 Cow. C. P. A. 1099, 1102, 47 F.2d 802, 804 (1931) In re Hermans, 18 Cow. C. P.A. 1211, 1212,48 F. 2d 386, 387 (1931) In re Batcher, 19 Cow. C. P. A. 1275, 1278, 59 F.2d 461, 463 (1932) In re Carlton, 27 Cow. C. P. A. 1102, 1105, 111 F.2d 190, 192 (1940) Farnsworth v. Brown, 29 Cow. C. P. A. 740, 749, 124 F.2d 208, 214 (1941) *168 In re Ubbelhode, 29 Cow. C. P. A.1042, 1046, 128 F.2d 453, 456 (1942) In re Cohen, 30 Cow. C. P. A. 876, 880, 133 F.2d 924, 926 (1943) In re Ruzicka, 32 Cow. C. P. A. 1165, 1169, 150 F.2d 550, 553 (1945) In re Allbright, 33 Cow. C. P. A. 760, 764, 152 F.2d 984, 986 (1946) Cases Referring to Agreement Within the Agency Beidler v. Caps, 17 Cow. C. P. A. 703, 705, 36 F.2d 122, 123 (1929) Stern v. Schroeder, 17 Cow. C. P. A. 690, 696-697, 36 F.2d 518, 521-522 (1929) Janette v. Folds, 17 Cow. C. P. A. 879, 881,38 F. 2d 361, 362 (1930) In re Moulton, 17 Cow. C. P. A. 891,892, 38 F.2d 359, 360 (1930) In re Banner, 17 Cow. C. P. A. 1086, 1090, 39 F.2d 690, 692 (1930) In re Walter, 17 Cow. C. P. A. 982, 983, 39 F.2d 724 (1930) Pengilly v. Copeland, 17 Cow. C. P. A. 1143, 1145, 40 F.2d 995, 996 (1930) Thompson v. Pettis, 18 Cow. C. P.A. 755, 757,44 F. 2d 420, 421 (1930) In re Kochendorfer, 18 Cow. C. P.A. 761, 763, 44 F.2d 418, 419 (1930) In re Dickerman, 18 Cow. C. P. A.766, 768, 44 F.2d 876, 877 (1930) Bennett v. Fitzgerald, 18 Cow. C. P. A. 1201, 1202, 48 F.2d 917, 918 (1931) In re Doherty, 18 Cow. C. P.A. 1278, 1280, 48 F.2d 952, 953 (1931) In re Murray, 19 Cow. C. P. A. 766, 767-768, 53 F.2d 540, 541 (1931) In re Breer, 19 Cow. C. P. A. 929, 931, 55 F.2d 485, 486 (1932) *169 Robbins v. Steinbart, 19 Cow. C. P. A. 1069, 1072, 57 F.2d 378, 379 (1932) Henry v. Harris, 19 Cow. C. P. A. 1092, 1096-1097, 56 F.2d 864, 866 (1932) Fageol v. Midboe, 19 Cow. C. P.A. 1117, 1122, 56 F.2d 867, 870 (1932) Gamble v. Church, 19 Cow. C. P. A. 1145, 1146, 57 F.2d 761, 762 (1932) Thompson v.Fawick, 20 Cow. C. P. A. 953, 956, 64 F.2d 125, 127 (1933) Evans v. Clocker, 20 Cow. C. P. A. 956, 960, 64 F.2d 137, 139 (1933) In re Bloch, 20 Cow. C. P. A. 1180, 1183, 65 F.2d 268, 269 (1933) In re Snyder, 21 Cow. C. P. A. 720, 722, 67 F.2d 493, 495 (1933) Osgood v. Ridderstrom, 21 Cow. C. P.A. 1176, 1182, 71 F.2d 191, 195 (1934) Urschel v. Crawford, 22 Cow. C. P. A. 727, 730, 73 F.2d 510, 511 (1934) Marine v. Wright, 22 Cow. C. P. A. 946, 948-949, 74 F.2d 996, 997 (1935) Berman v. Rondelle, 22 Cow. C. P. A. 1049, 1052, 75 F.2d 845, 847 (1935) Tomlin v. Dunlap, 24 Cow. C. P.A. 1108, 1114, 88 F.2d 727, 731 (1937) Lasker v. Kurowski, 24C. C. P.A. 1253, 1256, 90 F.2d 132, 134 (1937) In re Taylor, 25 Cow. C. P. A. 709, 711, 92 F.2d 705, 706 (1937) In re Adamson, 25 Cow. C. P. A.726, 729-730, 92 F.2d 717, 720 (1937) Adams v. Stuller, 25 Cow. C. P. A. 865, 870, 94 F.2d 403, 406 (1938) Ellis v. Maddox, 25 Cow. C. P. A. 1045, 1053, 96 F.2d 308, 314 (1938) Kauffman v.Etten, 25 Cow. C. P.A. 1127, 1134, 97 F.2d 134, 139 (1938) *170 Kindelmann v. Morsbach, 25 Cow. C. P. A. 1344, 1349, 97 F.2d 796, 799-800 (1938) King v.Young, 26 Cow. C. P. A. 762, 771, 100 F.2d 663, 670 (1938) Meuer v. Schellenger, 26 Cow. C. P.A. 1430, 1434, 104 F.2d 949, 952 (1939) McBride v. Teeple, 27 Cow. C. P. A. 961, 972, 109 F.2d 789, 797, cert. denied, 311 U.S. 649 (1940) Vickery v. Barnhart, 28 Cow. C. P. A. 979, 982, 118 F.2d 578, 581 (1941) Shumaker v.Paulson, 30 Cow. C. P.A. 1136, 1138, 136 F.2d 686, 688 (1943) Paulson v. Hyland, 30 Cow. C. P. A. 1150, 1152, 136 F.2d 695, 697 (1943) Dreyer v. Haffcke, 30 Cow. C. P.A. 1278, 1280, 137 F.2d 116, 117 (1943) Cases Referring to Neither Technical Complexity/Agency Expertise nor Agreement Within the Agency In re Schmidt, 26 Cow. C. P. A. 773, 777, 100 F.2d 673, 676 (1938) Hamer v. White, 31 Cow. C. P.A. 1186, 1189, 143 F.2d 987, 990 (1944) Kenyon v. Platt, 33 Cow. C. P. A. 748, 752, 152 F.2d 1006, 1009 (1946) Beall v.Ormsby, 33 Cow. C. P. A. 959, 967, 154 F.2

The Administrative Procedure Act (APA) sets forth standards governing judicial of findings of fact made by federal administrative agencies. 5 U.S. C. We must decide whether applies when the Federal Circuit s findings of fact made by the Patent and Trademark Office (PTO). We conclude that it does apply, and the Federal Circuit must use the framework set forth in that section. I Section originally enacted in sets forth standards that govern the "Scope" of court "" of, e. g., agency factfinding (what we shall call court/agency ). It says that a "ing court shall— "(2) hold unlawful and set aside agency findings. found to be— "(A) arbitrary, capricious, [or] an abuse of discretion, or "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise ed on the record of an agency hearing provided by statute; *153 "In making the foregoing determinations, the court shall the whole record or those parts of it cited by a party" Federal Rule of Civil Procedure 52(a) sets forth standards that govern appellate court of findings of fact made by a district court judge (what we shall call court/court ). It says that the appellate court shall set aside those findings only if they are "clearly erroneous." Traditionally, this court/court standard of has been considered somewhat stricter (i. e., allowing somewhat closer judicial ) than the APA's court/agency 2 K. Davis & R. Pierce, Administrative Law Treatise 11.2, p. 174 (3d ed. 1994) (hereinafter Davis & Pierce). The Court of Appeals for the Federal Circuit believes that it should apply the "clearly erroneous" standard when it s findings of fact made by the PTO. In re Zurko, The Commissioner of Patents, the PTO's head, believes to the contrary that ordinary APA court/agency standards apply. See, e. g., In re Kemps, ; In re Napier, ; In re Brana, The case before us tests these two competing legal views. Respondents applied for a patent upon a method for increasing computer security. The PTO patent examiner concluded that respondents' method was obvious in light of prior art, and so it denied the application. See 35 U.S. C. 103 (1994 ed., Supp. III). The PTO's board (the Board of Patent Appeals and Interferences) upheld the examiner's decision. Respondents sought in the Federal Circuit, where a panel treated the question of what the prior art teaches as one of fact, and agreed with respondents that the PTO's factual finding was "clearly erroneous." In re Zurko, The Federal Circuit, hoping definitively to resolve the -standard controversy, then heard the matter en banc. *154 After examining relevant precedents, the en banc court concluded that its use of the stricter court/court standard was legally proper. The Solicitor General, representing the Commissioner of Patents, sought certiorari. We granted the writ in order to decide whether the Federal Circuit's of PTO factfinding must take place within the framework set forth in the APA. II The parties agree that the PTO is an "agency" subject to the APA's constraints, that the PTO's finding at issue in this case is one of fact, and that the finding constitutes "agency action." See 5 U.S. C. 701 (defining "agency" as an "authority of the Government of the United States"); (applying APA "Scope of " provisions to "agency action"). Hence a ing court must apply the APA's court/agency standards in the absence of an exception. The Federal Circuit rests its claim for an exception upon 559. That section says that the APA does "not limit or repeal additional requirements recognized by law." In the Circuit's view: (1) at the time of the APA's adoption, in the Court of Customs and Patent Appeals (CCPA), a Federal Circuit predecessor, applied a court/court "clearly erroneous" standard; (2) that standard was stricter than ordinary court/agency standards; and (3) that special tradition of strict consequently amounted to an "additional requirement" that under 559 trumps the requirements imposed by Recognizing the importance of maintaining a uniform approach to judicial of administrative action, see, e. g., Universal ; 92 Cong. Rec. 5654 (statement of Rep. Walter), we have closely examined the Federal Circuit's claim for an exception to that uniformity. In doing so, we believe that respondents must show more than a possibility of a heightened *155 standard, and indeed more than even a bare preponderance of evidence in their favor. Existence of the additional requirement must be clear. This is suggested both by the phrase "recognized by law" and by the congressional specification in the APA that "[n]o subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly." 12, 5 U.S. C. 559. A statutory intent that legislative departure from the norm must be clear suggests a need for similar clarity in respect to grandfathered common-law variations. The APA was meant to bring uniformity to a field full of variation and diversity. It would frustrate that purpose to permit divergence on the basis of a requirement "recognized" only as ambiguous. In any event, we have examined the 89 cases which, according to respondents and supporting amici, embody the pre-APA standard of See App. to Brief for New York Intellectual Property Law Association as Amicus Curiae 1a-6a (collecting cases), and we conclude that those cases do not reflect a well-established stricter court/court standard of judicial for PTO factfinding, which circumstance fatally undermines the Federal Circuit's conclusion. The 89 pre-APA cases all involve CCPA of a PTO administrative decision, which either denied a patent or awarded priority to one of several competing applicants. See 35 U.S. C. 59a ( ed.) (granting CCPA authority over PTO decisions); 35 U.S. C. 141 (current grant of authority to the Federal Circuit). The major consideration that favors the Federal Circuit's view consists of the fact that 23 of the cases use words such as "clear case of error" or "clearly wrong" to describe the CCPA's standard, while the remainder use words such as "manifest error," which might be thought to mean the same thing. See App. to Brief for New York Intellectual Property Law Association as Amicus Curiae 1a-6a. When the CCPA decided many of these cases during the 's and early 's, *156 legal authorities had begun with increasing regularity to use the term "clearly erroneous" to signal court/court Fed. Rule Civ. Proc. 52(a) and the term "substantial evidence" to signal less strict court/agency Review of Findings of Administrators, Judges and Juries: A Comparative Analysis, Yet the presence of these phrases is not conclusive. The relevant linguistic conventions were less firmly established before adoption of the APA than they are today. At that time courts sometimes used words such as "clearly erroneous" to describe less strict court/agency See, e. g., Polish National ; New York Trust cert. denied, ; ; First National Bank of ; Other times they used words such as "substantial evidence" to describe stricter court/ court (including appeals in patent infringement cases challenging district court factfinding). See, e. g., ; Dow Chemical aff'd, ; Gordon Form Lathe (CA6), aff'd, ; Electro Mfg. ; Ajax Hand Brake 132 F.2d ; Galion Iron Works & Mfg. Indeed, this Court itself on at least one occasion used the words "substantial evidence" *157 to explain why it would not disturb a trial court's factual findings. Borden's Farm Products ; see also Great Atlantic & Pacific Tea Nor is the absence of the words "substantial evidence" in the CCPA's cases especially significant. Before the APA, the use of that term to describe court/agency proceeded by fits and starts, with the standardization of the term beginning to take hold only after Congress began using it (or the like) in various federal statutes. For example, this Court first used the phrase "substantial evidence" in the agency context to describe its approach to the Interstate Commerce Commission's (ICC's) factual findings, even though the underlying statute simply authorized a court of competent jurisdiction to suspend or set aside orders of the Commission, 12, The Court did not immediately grant the Federal Trade Commission the same leeway it granted the ICC, see even though the underlying Act used language to which the phrase "substantial evidence" might have applied, see 5, As the words "substantial evidence" began to appear more often in statutes, the Court began to use those same words in describing standards, sometimes supplying the modifier "substantial" when Congress had left it out. See, e. g., Consolidated ; see Stason, "Substantial Evidence" in Administrative Law, ; see also 320 U.S. The patent statutes, however, did not and do not *158 use the term "substantial evidence" or any other term to describe the standard of court 35 U.S. C. 61, 62 ( ed.). Indeed, it apparently remains disputed to this day (a dispute we need not settle today) precisely which APA standard—"substantial evidence" or "arbitrary, capricious, abuse of discretion"—would apply to court of PTO factfinding. See 5 U.S. C. (2)(E) (applying the term "substantial evidence" where agency factfinding takes place "on the record"); see also Association of Data Processing Service Orgs., (finding no difference between the APA's "arbitrary, capricious" standard and its "substantial evidence" standard as applied to court of agency factfinding.) Further, not one of the 89 opinions actually uses the precise words "clear error" or "clearly erroneous," which are terms of art signaling court/court Most of the 89 opinions use words like "manifest error," which is not now such a term of art. At the same time, precedent from this Court undermines the Federal Circuit's claim that the phrases "clearly wrong" or "manifest error" signal court/court The Federal Circuit traced its standard of back to which it characterized as the foundation upon which the CCPA later built its -1454. We shall describe that case in some detail. Morgan arose out of a Patent Office interference proceeding—a proceeding to determine which of two claimants was the first inventor. The Patent Office decided the factual question of "priority" in favor of one claimant; the Circuit Court, deciding the case "without any additional testimony," reversed the Patent Office's factual finding and awarded the patent to the other claimant. This Court in turn reversed the Circuit Court, thereby restoring the Patent Office decision. *159 "What," asked Justice Brewer for the Court, "is the rule which should control the [ing] court in the determination of this case?" Is it that the Patent Office decision "should stand unless the testimony shows beyond any reasonable doubt that the plaintiff was the first inventor"? The Court then cited two cases standing for such a "reasonable doubt" standard. (citing (16), and ). The Court found the two cases "closely in point." 153 U.S., Justice Brewer wrote that a person "challenging the priority awarded by the Patent Office should be held to as strict proof. " The Court, pointing out that the Circuit Court had used language "not quite so strong" (namely, "a clear and undoubted preponderance of proof"), thought that the Circuit Court's standard sounded more like the rule used by "an appellate court in ing findings of fact made by the trial court." The Court then wrote: "But this is something more than a mere appeal. It is an application to the court to set aside the action of one of the executive departments of the government. A new proceeding is instituted in the courts to set aside the conclusions reached by the administrative department It is not to be sustained by a mere preponderance of evidence. It is a controversy between two individuals over a question of fact which has once been settled by a special tribunal, entrusted with full power in the premises. As such it might be well argued, were it not for the terms of this statute, that the decision of the patent office was a finality upon every matter of fact." at The Court, in other words, reasoned strongly that a court/ court standard is not proper; that standard is too strict; a somewhat weaker standard of is appropriate. * We concede that the Court also used language that could be read as setting forth a court/court standard of It said, for example, that the "Patent Office [decision] must be accepted as controlling upon that question of factunless the contrary is established by testimony which carries thorough conviction. [I]f doubtful, the decision of the Patent Office must control." It added that the testimony was "not sufficient to produce a clear conviction that the Patent Office made a mistake." But the Court did not use the emphasized words today; it used those words more than 100 years ago. And its reasoning makes clear that it meant those words to stand for a court/agency standard, a standard weaker than the standard used by "an appellate court in ing findings of fact made by the trial court." The opinions in the 89 CCPA cases, cataloged in the Appendix to this opinion, reveal the same pattern. They use words such as "manifest error" or "clearly wrong." But they use those words to explain why they give so much, not so little, deference to agency factfinding. And, their further explanations, when given, indicate that they had court/ agency, not court/court, in mind. In nearly half of the cases, the CCPA explains why it uses its "manifest error" standard by pointing out that the PTO is an expert body, or that the PTO can better deal with the technically complex subject matter, and that the PTO consequently deserves deference. In more than three-fourths of the cases the CCPA says that it should defer to PTO factfinding because two (and sometimes more) PTO tribunals had ed the matter and agreed about the factual finding. These reasons are reasons that courts and commentators have long invoked to justify deference to agency factfinding. See Universal 340 U. S., at ; ; Rochester Telephone ; 227 U.S. ; -82 ; 2 Davis & Pierce 11.2, at 178- (intraagency agreement). They are not the reasons courts typically have given for deferring to factfinding made by a lower court judge. See, e. g., Concrete Pipe & Products of Cal., ; And we think it also worth noting, in light of the pre-APA movement toward standardization discussed that the CCPA began to refer more frequently to technical complexity and agency expertise as time marched closer to Out of the 45 cases in our sample decided between and 1936, 40% (18 of 45) specifically referred to technical complexity. That percentage increased to 57% (25 of 44) for the years to Given the CCPA's explanations, the standard's origins, and the nondeterminative nature of the phrases, we cannot agree with the Federal Circuit that in when Congress enacted the APA, the CCPA "recognized" the use of a stricter court/court, rather than a less strict court/ agency, standard for PTO decisions. Hence the Federal Circuit's of PTO findings of fact cannot amount to an "additional requiremen[t] recognized by law." 5 U.S. C. 559. III The Federal Circuit also advanced several policy reasons which in its view militate against use of APA standards of First, it says that both bench and bar have now become used to the Circuit's application of a "clearly erroneous" standard that implies somewhat stricter court/court It says that change may prove needlessly disruptive. * -1458. Supporting amici add that it is better that the matter remain "`settled than that it be settled right.' " Brief for Patent, Trademark & Copyright Section of the Bar Association of the District of Columbia as Amicus Curiae 23 (quoting Square D (16)). This Court, however, has not previously settled the matter. The Federal Circuit's standard would require us to create 559 precedent that itself could prove disruptive by too readily permitting other agencies to depart from uniform APA requirements. And in any event we believe the Circuit overstates the difference that a change of standard will mean in practice. This Court has described the APA court/agency "substantial evidence" standard as requiring a court to ask whether a "reasonable mind might accept" a particular evidentiary record as "adequate to support a conclusion." Consolidated 305 U. S., at It has described the court/court "clearly erroneous" standard in terms of whether a ing judge has a "definite and firm conviction" that an error has been committed. United And it has suggested that the former is somewhat less strict than the latter. Universal 4 At the same time the Court has stressed the importance of not simply rubber-stamping agency factfinding. The APA requires meaningful ; and its enactment meant stricter judicial of agency factfinding than Congress believed some courts had previously conducted. The upshot in terms of judicial is some practical difference in outcome depending upon which standard is used. The court/agency standard, as we have said, is somewhat less strict than the court/court standard. But the difference *163 is a subtle one—so fine that (apart from the present case) we have failed to uncover a single instance in which a ing court conceded that use of one standard rather than the other would in fact have produced a different outcome. Cf. International Brotherhood of Electrical (wrongly believing—and correcting himself—that he had found the "case dreamed of by law school professors" where the agency's findings, though "clearly erroneous," were "nevertheless" supported by "substantial evidence"). The difficulty of finding such a case may in part reflect the basic similarity of the ing task, which requires judges to apply logic and experience to an evidentiary record, whether that record was made in a court or by an agency. It may in part reflect the difficulty of attempting to capture in a form of words intangible factors such as judicial confidence in the fairness of the factfinding process. Universal at ; Jaffe, Judicial Review: "Substantial Evidence on the Whole Record," 5 It may in part reflect the comparatively greater importance of case-specific factors, such as a finding's dependence upon agency expertise or the presence of internal agency which factors will often prove more influential in respect to outcome than will the applicable standard of These features of underline the importance of the fact that, when a Federal Circuit judge s PTO factfinding, he or she often will examine that finding through the lens of patent-related experience—and properly so, for the Federal Circuit is a specialized court. That comparative expertise, by enabling the Circuit better to understand the basis for the PTO's finding of fact, may play a more important role in assuring proper than would a theoretically somewhat stricter standard. *164 Moreover, if the Circuit means to suggest that a change of standard could somehow immunize the PTO's fact-related "reasoning" from -1450, we disagree. A ing court s an agency's reasoning to determine whether it is "arbitrary" or "capricious," or, if bound up with a record-based factual conclusion, to determine whether it is supported by "substantial evidence." E. g., Second, the Circuit and its supporting amici believe that a change to APA standards will create an anomaly. An applicant denied a patent can seek either directly in the Federal Circuit, see 35 U.S. C. 141, or indirectly by first obtaining direct in federal district court, see 145. The first path will now bring about Federal Circuit court/agency ; the second path might well lead to Federal Circuit court/court for the Circuit now s federal district court factfinding using a "clearly erroneous" standard. (17). The result, the Circuit claims, is that the outcome may turn upon which path a disappointed applicant takes; and it fears that those applicants will often take the more complicated, timeconsuming indirect path in order to obtain stricter judicial of the PTO's determination. We are not convinced, however, that the presence of the two paths creates a significant anomaly. The second path permits the disappointed applicant to present to the court evidence that the applicant did not present to the PTO. The presence of such new or different evidence makes a factfinder of the district judge. And nonexpert judicial factfinding calls for the court/court standard of We concede that an anomaly might exist insofar as the district judge does no more than PTO factfinding, but nothing in this opinion prevents the Federal Circuit from adjusting related standards where necessary. Cf. (CA Fed. 15) (harmonizing standards). *165 Finally, the Circuit reasons that its stricter court/court will produce better agency factfinding. It says that the standard encourages the creation of "administrative records that more fully describe the metes and bounds of the patent grant" and "help avoid situations where board fact finding on matters such as anticipation or the factual inquiries underlying obviousness become virtually unable." Neither the Circuit nor its supporting amici, however, have explained convincingly why direct of the PTO's patent denials demands a stricter factrelated standard than is applicable to other agencies. Congress has set forth the appropriate standard in the APA. For the reasons stated, we have not found circumstances that justify an exception. For these reasons, the judgment of the Federal Circuit is reversed. We remand the case for further proceedings consistent with this opinion. So ordered. APPENDIX TO OPINION OF THE COURT Review of 89 Pre-APA CCPA Patent Cases Reciting "Clear" or "Manifest" Error Standard Cases Referring to both Technical Complexity/Agency Expertise and the Agreement (Disagreement) Within the Agency v. Schroeder, 17 Cow. C. P. A. 674, In re Ford, 17 Cow. C. P. A. 893, 894, In re Demarest, 17 Cow. C. P. A. 904, 906, In re Wietzel, 17 Cow. C. P. A. 1079, 1082, In re Anhaltzer, 18 Cow. C. P. A. 1, 1184, *166 Dorer v. Moody, 18 Cow. C. P. A. 11, 1190, 48 F.2d 3, In re Hornsey, 18 Cow. C. P. A. 1222, 1224, Rowe v.Holtz, 19 Cow. C. P. A. 970, 974, In re Fessenden, 19 Cow. C. P. A. 1048, 1050-1051, Martin v. Friendly, 19 Cow. C. P. A. 1, 1-1183, In re Dubilier, 20 Cow. C. P. A. 809, 815, In re Alden, 20 Cow. C. P. A. 1083, 1084-1085, In re Pierce, 20 Cow. C. P.A. 0, 5, Angell v.Morin, 21 Cow. C. P. A. 1018, 1024, Daley v.Trube, 24 Cow. C. P. A. 964, 971, F.2d 308, F.2d 734, Bryson v.Clarke, 25 Cow. C. P. A. 719, 721, Brand v.Thomas, 25 Cow. C. P.A. 1053, 1055, Creed v.Potts, 25 Cow. C. P. A. 1084, 1089, In re Cassidy, 25 Cow. C. P. A. 1282, 1285, Parker v.Ballantine, 26 Cow. C. P. A. 799, 223 (disagreement) *167 In re Bertsch, 27 Cow. C. P. A. 760, 763-, In re Wuertz, 27 Cow. C. P. A. 1039, 1046, In re Kaplan, 27 Cow. C. P. A. 1072, 1075, 110 F.2d Prahl v.Redman, 28 Cow. C.P. A. 937, 940, In re Bertsch, 30 Cow. C. P. A. 813, 815-816, In re Stacy, 30 Cow. C. P. A. 972, 974, Pinkerton v.Stahly, 32 Cow. C. P. A. 723, 728, 144 F.2d 1, 5 Cases Referring to Technical Complexity/Agency Expertise In re Engelhardt, 17 Cow. C.P. A. 4, 1251, In re McDonald, 18 Cow. C. P. A. 1099, 1102, In re Hermans, 18 Cow. C. P.A. 1211, 1212, In re Batcher, 19 Cow. C. P. A. 1, 8, In re Carlton, 27 Cow. C. P. A. 1102, 1105, F.2d 208, * In re Ubbelhode, 29 Cow. C. P. A.1042, 1046, In re Cohen, 30 Cow. C. P. A. 876, 0, In re Ruzicka, 32 Cow. C. P. A. 1165, 1169, In re Allbright, 33 Cow. C. P. A. 760, 152 F.2d 4, 6 Cases Referring to Agreement Within the Agency v. Schroeder, 17 Cow. C. P. A. 690, 696-, Janette v. Folds, 17 Cow. C. P. A. 879, 1, In re Moulton, 17 Cow. C. P. A. 891,892, In re Banner, 17 Cow. C. P. A. 1086, 1090, In re Walter, 17 Cow. C. P. A. 2, 3, 40 F.2d 9,44 F. 2d In re Kochendorfer, 18 Cow. C. P.A. 761, 763, In re Dickerman, 18 Cow. C. P. A.766, 768, In re Doherty, 18 Cow. C. P.A. 8, 1280, 48 F.2d 2, 3 In re Murray, 19 Cow. C. P. A. 766, 767-768, In re Breer, 19 Cow. C. P. A. 929, 931, *169 Thompson v.Fawick, 20 Cow. C. P. A. 3, 6, Evans v. Clocker, 20 Cow. C. P. A. 6, 960, 64 F.2d In re Bloch, 20 Cow. C. P. A. 1180, 1183, In re Snyder, 21 Cow. C. P. A. 4 Osgood v. Ridderstrom, 21 Cow. C. P.A. 6, 1, 1 74 F.2d F.2d 727, In re Taylor, 25 Cow. C. P. A. 709, 711, In re Adamson, 25 Cow. C. P. A.726, 729-730, Adams v. Stuller, 25 Cow. C. P. A. 865, Kauffman v.Etten, 25 Cow. C. P.A. 1, 1, 97 F.2d *170 Kindelmann v. Morsbach, 25 Cow. C. P. A. 4, 9, King v.Young, 26 Cow. C. P. A. 771, 2 cert. denied, 311 U.S. Vickery v. Barnhart, 28 Cow. C. P. A. 979, 2, Shumaker v.Paulson, 30 Cow. C. P.A. 1136, 1138, 6 136 F.2d Dreyer v. Haffcke, 30 Cow. C. P.A. 8, 1280, F.2d 116, Cases Referring to Neither Technical Complexity/Agency Expertise nor Agreement Within the Agency In re Schmidt, 26 Cow. C. P. A. 773, 777, 143 F.2d 7, Beall v.Ormsby, 33 Cow. C. P. A. 9, 967, 154 F.2

Justice Rehnquist

dissenting

Dickinson v. Zurko

1999-06-10

https://www.courtlistener.com/opinion/118302/dickinson-v-zurko/

https://www.courtlistener.com/api/rest/v3/clusters/118302/

1998-071

The issue in this case is whether, at the time of the enactment of the Administrative Procedure Act (APA or Act) over 50 years ago, judicial review of factfinding by the Patent and Trademark Office (PTO) under the "clearly erroneous" standard was an "additional requiremen[t] . . . recognized by law." 5 U.S. C. § 559. It is undisputed that, until today's decision, *171 both the patent bench and the patent bar had concluded that the stricter "clearly erroneous" standard was indeed such a requirement placed upon the PTO.[*] Agency factfinding was thus reviewed under this stricter standard; in my view, properly so, since the APA by its plain text was intended to bring some uniformity to judicial review of agencies by raising the minimum standards of review and not by lowering those standards which existed at the time. Section 12 of the APA, which was ultimately codified as § 559, provided that "[n]othing in this Act shallbe held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law." Pub. L. 404, 79th Cong., 60 Stat. 244. As a result, we must decide whether the "clearly erroneous" standard was indeed otherwise recognized by law in 1946. This case therefore turns on whether the 89 or so cases identified by the Court can be read as establishing a requirement placed upon agencies that was more demanding than the uniform minimum standards created by the APA. In making this determination, I would defer, not to agencies in general as the Court does today, but to the Court of Appeals for the Federal Circuit, the specialized Article III court charged with review of patent appeals. In this case the unanimous en banc Federal Circuit and the patent bar both agree that these cases recognized the "clearly erroneous" standard as an "additional requirement" placed on the PTO beyond the APA's minimum procedures. I see no reason to reject their sensible and plausible resolution of the issue. Nor do I agree with the Court, ante, at 154-155, that either the plain language of § 559 or the original § 12 impose any sort of "clear statement rule" on the common law. Section *172 12 of the APA expressly stated that requirements which predated the APA and were "otherwise recognized by law" were unaffected by the Act. If Congress had meant "otherwise recognized by law" to mean "clearly recognized by law," it certainly could have said so, but did not. I also reject the notion that § 559's separate textual requirement that subsequent statutes superseding or modifying the APA must do so "expressly," 5 U.S. C. § 559,should be read to impose a nontextual clear statement rule for the antecedent commonlaw requirements that the APA supplemented. There is no tension whatsoever between the goals of preserving more rigorous common-law requirements at the time of enactment and ensuring that future statutes would not repeal by implication the APA's uniform supplementary procedures. I therefore dissent for the reasons given by the Court of Appeals.

The issue in this case is whether, at the time of the enactment of the Administrative Procedure Act (APA or Act) over 50 years ago, judicial review of factfinding by the Patent and Trademark Office (PTO) under the "clearly erroneous" standard was an "additional requiremen[t] recognized by law." 5 U.S. C. 559. It is undisputed that, until today's decision, *171 both the patent bench and the patent bar had concluded that the stricter "clearly erroneous" standard was indeed such a requirement placed upon the PTO.[*] Agency factfinding was thus reviewed under this stricter standard; in my view, properly so, since the APA by its plain text was intended to bring some uniformity to judicial review of agencies by raising the minimum standards of review and not by lowering those standards which existed at the time. Section 12 of the APA, which was ultimately codified as 559, provided that "[n]othing in this Act shallbe held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law." Pub. L. 404, 79th Cong., As a result, we must decide whether the "clearly erroneous" standard was indeed otherwise recognized by law in 1946. This case therefore turns on whether the 89 or so cases identified by the Court can be read as establishing a requirement placed upon agencies that was more demanding than the uniform minimum standards created by the APA. In making this determination, I would defer, not to agencies in general as the Court does today, but to the Court of Appeals for the Federal Circuit, the specialized Article III court charged with review of patent appeals. In this case the unanimous en banc Federal Circuit and the patent bar both agree that these cases recognized the "clearly erroneous" standard as an "additional requirement" placed on the PTO beyond the APA's minimum procedures. I see no reason to reject their sensible and plausible resolution of the issue. Nor do I agree with the Court, ante, at 154-155, that either the plain language of 559 or the original 12 impose any sort of "clear statement rule" on the common law. Section *172 12 of the APA expressly stated that requirements which predated the APA and were "otherwise recognized by law" were unaffected by the Act. If Congress had meant "otherwise recognized by law" to mean "clearly recognized by law," it certainly could have said so, but did not. I also reject the notion that 559's separate textual requirement that subsequent statutes superseding or modifying the APA must do so "expressly," 5 U.S. C. 559,should be read to impose a nontextual clear statement rule for the antecedent commonlaw requirements that the APA supplemented. There is no tension whatsoever between the goals of preserving more rigorous common-law requirements at the time of enactment and ensuring that future statutes would not repeal by implication the APA's uniform supplementary procedures. I therefore dissent for the reasons given by the Court of Appeals.

Justice Thomas

majority

District of Columbia v. Wesby

2018-01-22

https://www.courtlistener.com/opinion/4460811/district-of-columbia-v-wesby/

https://www.courtlistener.com/api/rest/v3/clusters/4460811/

This case involves a civil suit against the District of Columbia and five of its police officers, brought by 16 individuals who were arrested for holding a raucous, late- night party in a house they did not have permission to enter. The United States Court of Appeals for the District of Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the officers were not entitled to qualified immunity. We reverse on both grounds. I Around 1 a.m. on March 16, 2008, the District’s Metro- politan Police Department received a complaint about loud music and illegal activities at a house in Northeast D. C. The caller, a former neighborhood commissioner, told police that the house had been vacant for several months. When officers arrived at the scene, several neighbors confirmed that the house should have been empty. The officers approached the house and, consistent with the complaint, heard loud music playing inside. After the officers knocked on the front door, they saw a 2 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court man look out the window and then run upstairs. One of the partygoers opened the door, and the officers entered. They immediately observed that the inside of the house “ ‘was in disarray’ ” and looked like “ ‘a vacant property.’ ” 841 F. Supp. 2d 20, 31 (DC 2012) (quoting Defs. Exh. A). The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the floor was so dirty that one of the partygoers refused to sit on it while being questioned. Although the house had working electricity and plumbing, it had no furniture downstairs other than a few padded metal chairs. The only other signs of habita- tion were blinds on the windows, food in the refrigerator, and toiletries in the bathroom. In the living room, the officers found a makeshift strip club. Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol. After seeing the uniformed officers, many partygoers scattered into other parts of the house. The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out. The officers found a total of 21 people in the house. After interviewing all 21, the officers did not get a clear or consistent story. Many partygoers said they were there for a bachelor party, but no one could identify the bache- lor. Each of the partygoers claimed that someone had invited them to the house, but no one could say who. Two of the women working the party said that a woman named “Peaches” or “Tasty” was renting the house and had given Cite as: 583 U. S. ____ (2018) 3 Opinion of the Court them permission to be there. One of the women explained that the previous owner had recently passed away, and Peaches had just started renting the house from the grandson who inherited it. But the house had no boxes or moving supplies. She did not know Peaches’ real name. And Peaches was not there. An officer asked the woman to call Peaches on her phone so he could talk to her. Peaches answered and explained that she had just left the party to go to the store. When the officer asked her to return, Peaches refused because she was afraid of being arrested. The sergeant supervising the investigation also spoke with Peaches. At first, Peaches claimed to be renting the house from the owner, who was fixing it up for her. She also said that she had given the attendees permission to have the party. When the sergeant again asked her who had given her permission to use the house, Peaches became evasive and hung up. The sergeant called her back, and she began yelling and insisting that she had permission before hang- ing up a second time. The officers eventually got Peaches on the phone again, and she admitted that she did not have permission to use the house. The officers then contacted the owner. He told them that he had been trying to negotiate a lease with Peaches, but they had not reached an agreement. He confirmed that he had not given Peaches (or anyone else) permission to be in the house—let alone permission to use it for a bachelor party. At that point, the officers arrested the 21 partygoers for unlawful entry. See D. C. Code §22–3302 (2008). The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct. See §22–1321. The partygoers were released, and the charges were eventually dropped.1 —————— 1 In their merits brief, the partygoers attempt to dispute several of these facts. See Brief for Respondents 26–30. But the facts they now 4 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court II Respondents, 16 of the 21 partygoers, sued the District and five of the arresting officers. They sued the officers for false arrest under the Fourth Amendment, Rev. Stat. §1979, 42 U.S. C. §1983, and under District law. They sued the District for false arrest and negligent supervision under District law. The partygoers’ claims were all “pred- icated upon the allegation that [they] were arrested with- out probable cause.” 841 F. Supp. 2d, at 32. On cross-motions for summary judgment, the District Court awarded partial summary judgment to the party- goers. Id., at 48–49. It concluded that the officers lacked probable cause to arrest the partygoers for unlawful en- try.2 Id., at 32–33. The officers were told that Peaches had invited the partygoers to the house, the District Court reasoned, and nothing the officers learned in their investi- gation suggested the partygoers “ ‘knew or should have known that [they were] entering against the [owner’s] will.’ ” Id., at 32. The District Court also concluded that the officers were not entitled to qualified immunity under —————— contest were presented in the petition for a writ of certiorari, and the partygoers did not contest them in their brief in opposition. Under this Court’s Rule 15.2, the partygoers’ failure to contest these factual assertions at the certiorari stage waived their right to do so at the merits stage. See Carcieri v. Salazar, 555 U.S. 379, 395–396 (2009). Furthermore, although both parties moved for summary judgment, the undisputed facts here are sufficient to resolve both probable cause and qualified immunity. Our analysis thus would not change no matter which party is considered the moving party. Cf. Scott v. Harris, 550 U.S. 372, 378–379 (2007) (explaining that, at summary judgment, courts must view the facts and draw reasonable inferences in favor of the nonmoving party). 2 Because probable cause is an objective standard, an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. See Devenpeck v. Alford, 543 U.S. 146, 153–155, and n. 2 (2004). Because unlawful entry is the only offense that the District and its officers discuss in their briefs to this Court, we likewise limit our analysis to that offense. Cite as: 583 U. S. ____ (2018) 5 Opinion of the Court §1983.3 It noted that, under District case law, “probable cause to arrest for unlawful entry requires evidence that the alleged intruder knew or should have known, upon entry, that such entry was against the will of the owner.” Id., at 37. And in its view, the officers had no such evi- dence. Id., at 32–33, 37–38. With liability resolved, the case proceeded to trial on damages. The jury awarded the partygoers a total of $680,000 in compensatory damages. After the District Court awarded attorney’s fees, the total award was nearly $1 million. On appeal, a divided panel of the D. C. Circuit affirmed. On the question of probable cause, the panel majority made Peaches’ invitation “central” to its determination that the officers lacked probable cause to arrest the party- goers for unlawful entry. 765 F.3d 13, 21 (2014). The panel majority asserted that, “in the absence of any con- flicting information, Peaches’ invitation vitiates the neces- sary element of [the partygoers’] intent to enter against the will of the lawful owner.” Ibid. And the panel major- ity determined that “there is simply no evidence in the record that [the partygoers] had any reason to think the invitation was invalid.” Ibid. On the question of qualified immunity, the panel major- ity determined that it was “perfectly clear” that a person with “a good purpose and bona fide belief of her right to enter” lacks the necessary intent for unlawful entry. Id., at 27. In other words, the officers needed “some evidence” that the partygoers “knew or should have known they were entering against the will of the lawful owner.” Ibid. —————— 3 The District Court granted summary judgment against two of the officers, but denied summary judgment against the other three because there were triable issues regarding qualified immunity. See 841 F. Supp. 2d 20, 32–46 (DC 2012). The partygoers voluntarily dismissed their claims against those three officers. See 765 F.3d 13, 17 (CADC 2014). 6 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court And here, the panel majority asserted, the officers must “have known that uncontroverted evidence of an invitation to enter the premises would vitiate probable cause for unlawful entry.” Ibid. Judge Brown dissented. She concluded that summary judgment on the false-arrest claims was improper because, under the totality of the circumstances, a reasonable officer “could disbelieve [the partygoers’] claim of innocent entry” and infer that they knew or should have known that they did not have permission to be in the house. Id., at 34. She also disagreed with the denial of qualified immunity, contending that a reasonable officer could have found probable cause to arrest in this “unusual factual scenario, not well represented in the controlling case law.” Id., at 36. The D. C. Circuit denied rehearing en banc over the dissent of four judges. The dissenters focused on qualified immunity, contending that the panel opinion “contra- vene[d] . . . emphatic Supreme Court directives” that “police officers may not be held liable for damages unless the officers were ‘plainly incompetent’ or ‘knowingly vio- late[d]’ clearly established law.” 816 F.3d 96, 102 (2016) (quoting Carroll v. Carman, 574 U. S. ___, ___ (2014) ( per curiam) (slip op., at 4)). The panel majority— Judges Pillard and Edwards—responded in a joint concurrence. 816 F.3d, at 96–101. They insisted that the panel opinion did not misapply the law of qualified immunity, and that their disagreement with the dissenters was a mere “case- specific assessment of the circumstantial evidence in the record.” Id., at 100. We granted certiorari to resolve two questions: whether the officers had probable cause to arrest the partygoers, and whether the officers were entitled to qualified immun- ity. See 580 U. S. ___ (2017). We address each question in turn. Cite as: 583 U. S. ____ (2018) 7 Opinion of the Court III The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Because arrests are “seizures” of “persons,” they must be reasonable under the circumstances. See Payton v. New York, 445 U.S. 573, 585 (1980). A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. Atwater v. Lago Vista, 532 U.S. 318, 354 (2001). To determine whether an officer had probable cause for an arrest, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). Because probable cause “deals with probabilities and depends on the totality of the circumstances,” 540 U.S., at 371, it is “a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232 (1983). It “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Id., at 243–244, n. 13 (1983). Probable cause “is not a high bar.” Kaley v. United States, 571 U. S. ___, ___ (2014) (slip op., at 18). A There is no dispute that the partygoers entered the house against the will of the owner. Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them because the officers had no reason to be- lieve that they “knew or should have known” their “entry was unwanted.” Ortberg v. United States, 81 A.3d 303, 308 (D. C. 2013). We disagree. Considering the totality of the circumstances, the officers made an “entirely reason- 8 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court able inference” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party. Pringle, supra, at 372. Consider first the condition of the house. Multiple neighbors, including a former neighborhood official, in- formed the officers that the house had been vacant for several months.4 The house had no furniture, except for a few padded metal chairs and a bare mattress. The rest of the house was empty, save for some fixtures and large appliances. The house had a few signs of inhabitance— working electricity and plumbing, blinds on the windows, toiletries in the bathroom, and food in the refrigerator. But those facts are not necessarily inconsistent with the house being unoccupied. The owner could have paid the utilities and kept the blinds while he looked for a new tenant, and the partygoers could have brought the food and toiletries. Although one woman told the officers that Peaches had recently moved in, the officers had reason to doubt that was true. There were no boxes or other moving supplies in the house; nor were there other possessions, such as clothes in the closet, suggesting someone lived there. In addition to the condition of the house, consider the partygoers’ conduct. The party was still going strong when the officers arrived after 1 a.m., with music so loud that it could be heard from outside. Upon entering the house, multiple officers smelled marijuana.5 The party- —————— 4 At oral argument, the partygoers argued that the house was not formally “vacant” under District law. Tr. of Oral Arg. 34. But a rea- sonable officer could infer that the complaining neighbors used the term “vacant” in the colloquial, not the legal, sense. 5 The panel majority dismissed this fact because the officers “did not see any evidence of drugs” and did “not attempt to justify [the] arrests” based on drug use. 765 F.3d, at 23, n. 5. But a reasonable officer could infer, based on the smell, that marijuana had been used in the house. See Johnson v. United States, 333 U.S. 10, 13 (1948) (noting that “the odor” of narcotics can “be evidence of the most persuasive character”). Cite as: 583 U. S. ____ (2018) 9 Opinion of the Court goers left beer bottles and cups of liquor on the floor, and they left the floor so dirty that one of them refused to sit on it. The living room had been converted into a make- shift strip club. Strippers in bras and thongs, with cash stuffed in their garter belts, were giving lap dances. Up- stairs, the officers found a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom. Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “ ‘common-sense conclusions about human behav- ior.’ ” Gates, supra, at 231 (quoting United States v. Cor- tez, 449 U.S. 411, 418 (1981)). Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized. The partygoers’ reaction to the officers gave them fur- ther reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom. “[U]nprovoked flight upon noticing the police,” we have explained, “is certainly suggestive” of wrongdoing and can be treated as “suspicious behavior” that factors into the totality of the circumstances. Illinois v. Wardlow, 528 U.S. 119, 124–125 (2000). In fact, “deliberately furtive actions and flight at the approach of . . . law officers are strong indicia of mens rea.” Sibron v. New York, 392 U.S. 40, 66 (1968) (emphasis added). A reasonable officer could —————— And the officers could consider the drug use inside the house as evi- dence that the partygoers knew their presence was unwelcome. 10 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court infer that the partygoers’ scattering and hiding was an indication that they knew they were not supposed to be there. The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them. Only two people claimed that Peaches had invited them, and they were working the party instead of attending it. If Peaches was the hostess, it was odd that none of the partygoers men- tioned her name. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor. Based on the vagueness and implau- sibility of the partygoers’ stories, the officers could have reasonably inferred that they were lying and that their lies suggested a guilty mind. Cf. Devenpeck v. Alford, 543 U.S. 146, 149, 155–156 (2004) (noting that the suspect’s “untruthful and evasive” answers to police questioning could support probable cause). The panel majority relied heavily on the fact that Peaches said she had invited the partygoers to the house. But when the officers spoke with Peaches, she was nerv- ous, agitated, and evasive. Cf. Wardlow, supra, at 124 (explaining that the police can take a suspect’s “nervous, evasive behavior” into account). After initially insisting that she had permission to use the house, she ultimately confessed that this was a lie—a fact that the owner con- firmed. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she had told them. For example, the officers could have inferred that Peaches lied to them when she said she had invited the others to the house, which was consistent with the fact that hardly anyone at the party knew her name. Or the officers could Cite as: 583 U. S. ____ (2018) 11 Opinion of the Court have inferred that Peaches told the partygoers (like she eventually told the police) that she was not actually rent- ing the house, which was consistent with how the party- goers were treating it. Viewing these circumstances as a whole, a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the house. B In concluding otherwise, the panel majority engaged in an “excessively technical dissection” of the factors support- ing probable cause. Gates, 462 U.S., at 234. Indeed, the panel majority failed to follow two basic and well- established principles of law. First, the panel majority viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” Pringle, 540 U.S., at 372, n. 2. This was “mistaken in light of our precedents.” Ibid. The “totality of the circum- stances” requires courts to consider “the whole picture.” Cortez, supra, at 417. Our precedents recognize that the whole is often greater than the sum of its parts— especially when the parts are viewed in isolation. See United States v. Arvizu, 534 U.S. 266, 277–278 (2002). Instead of considering the facts as a whole, the panel majority took them one by one. For example, it dismissed the fact that the partygoers “scattered or hid when the police entered the house” because that fact was “not suffi- cient standing alone to create probable cause.” 765 F.3d, at 23 (emphasis added). Similarly, it found “nothing in the record suggesting that the condition of the house, on its own, should have alerted the [partygoers] that they were unwelcome.” Ibid. (emphasis added). The totality-of- the-circumstances test “precludes this sort of divide-and- conquer analysis.” Arvizu, 534 U.S., at 274. Second, the panel majority mistakenly believed that it 12 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court could dismiss outright any circumstances that were “sus- ceptible of innocent explanation.” Id., at 277. For exam- ple, the panel majority brushed aside the drinking and the lap dances as “consistent with” the partygoers’ explanation that they were having a bachelor party. 765 F.3d, at 23. And it similarly dismissed the condition of the house as “entirely consistent with” Peaches being a “new tenant.” Ibid. But probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts. As we have explained, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” Gates, 462 U.S., at 244, n. 13. Thus, the panel majority should have asked whether a reasonable officer could conclude—considering all of the surrounding cir- cumstances, including the plausibility of the explanation itself—that there was a “substantial chance of criminal activity.” Ibid. The circumstances here certainly suggested criminal activity. As explained, the officers found a group of people who claimed to be having a bachelor party with no bache- lor, in a near-empty house, with strippers in the living room and sexual activity in the bedroom, and who fled at the first sign of police. The panel majority identified innocent explanations for most of these circumstances in isolation, but again, this kind of divide-and-conquer ap- proach is improper. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. Arvizu, supra, at 274. And here, the totality of the circumstances gave the offic- ers plenty of reasons to doubt the partygoers’ protestations of innocence. For all of these reasons, we reverse the D. C. Circuit’s holding that the officers lacked probable cause to arrest. Accordingly, the District and its officers are entitled to Cite as: 583 U. S. ____ (2018) 13 Opinion of the Court summary judgment on all of the partygoers’ claims.6 IV Our conclusion that the officers had probable cause to arrest the partygoers is sufficient to resolve this case. But where, as here, the Court of Appeals erred on both the merits of the constitutional claim and the question of qualified immunity, “we have discretion to correct its errors at each step.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see, e.g., Plumhoff v. Rickard, 572 U. S. ___ (2014). We exercise that discretion here because the D. C. Circuit’s analysis, if followed elsewhere, would “under- mine the values qualified immunity seeks to promote.” al- Kidd, supra, at 735.7 A Under our precedents, officers are entitled to qualified immunity under §1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the time.” Reichle v. Howards, 566 U.S. 658, 664 (2012). “Clearly established” means that, at the time of the officer’s con- duct, the law was “ ‘sufficiently clear’ that every ‘reason- able official would understand that what he is doing’ ” is unlawful. al-Kidd, supra, at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other words, existing law must have placed the constitutionality of the officer’s conduct “beyond debate.” al-Kidd, supra, at 741. This demanding standard protects “all but the plainly —————— 6 The partygoers do not contest that the presence of probable cause defeats all of their claims. 7 We continue to stress that lower courts “should think hard, and then think hard again,” before addressing both qualified immunity and the merits of an underlying constitutional claim. Camreta v. Greene, 563 U.S. 692, 707 (2011). We addressed the merits of probable cause here, however, because a decision on qualified immunity alone would not have resolved all of the claims in this case. 14 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam), which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority,’ ” al-Kidd, supra, at 741–742 (quot- ing Wilson v. Layne, 526 U.S. 603, 617 (1999)). It is not enough that the rule is suggested by then-existing prece- dent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. See Reichle, 566 U.S., at 666. Otherwise, the rule is not one that “every reasonable official” would know. Id., at 664 (internal quotation marks omitted). The “clearly established” standard also requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). This requires a high “degree of specificity.” Mullenix v. Luna, 577 U. S. ___, ___ (2015) (per curiam) (slip op., at 6). We have repeatedly stressed that courts must not “define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” Plumhoff, supra, at ___–___ (slip op., at 12– 13) (internal quotation marks and citation omitted). A rule is too general if the unlawfulness of the officer’s con- duct “does not follow immediately from the conclusion that [the rule] was firmly established.” Anderson, supra, at 641. In the context of a warrantless arrest, the rule must obviously resolve “whether ‘the circumstances with which [the particular officer] was confronted . . . constitute[d] Cite as: 583 U. S. ____ (2018) 15 Opinion of the Court probable cause.’ ” Mullenix, supra, at ___ (slip op., at 6) (quoting Anderson, supra, at 640–641; some alterations in original). We have stressed that the “specificity” of the rule is “especially important in the Fourth Amendment context.” Mullenix, supra, at ___ (slip op., at 5). Probable cause “turn[s] on the assessment of probabilities in particular factual contexts” and cannot be “reduced to a neat set of legal rules.” Gates, 462 U.S., at 232. It is “incapable of precise definition or quantification into percentages.” Pringle, 540 U.S., at 371. Given its imprecise nature, officers will often find it difficult to know how the general standard of probable cause applies in “the precise situa- tion encountered.” Ziglar v. Abbasi, 582 U. S. ___, ___ (2017) (slip op., at 28). Thus, we have stressed the need to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment.” White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 6); e.g., Plumhoff, supra, at ___. While there does not have to be “a case directly on point,” existing precedent must place the lawfulness of the par- ticular arrest “beyond debate.” al-Kidd, supra, at 741. Of course, there can be the rare “obvious case,” where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances. Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). But “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause. Ibid. Under these principles, we readily conclude that the officers here were entitled to qualified immunity. We start by defining “the circumstances with which [the officers] w[ere] confronted.” Anderson, 483 U.S., at 640. The officers found a group of people in a house that the neigh- bors had identified as vacant, that appeared to be vacant, and that the partygoers were treating as vacant. The 16 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court group scattered, and some hid, at the sight of law en- forcement. Their explanations for being at the house were full of holes. The source of their claimed invitation admit- ted that she had no right to be in the house, and the owner confirmed that fact. Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to quali- fied immunity because they “reasonably but mistakenly conclude[d] that probable cause [wa]s present.” Id., at 641. Tellingly, neither the panel majority nor the party- goers have identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment violation “under similar circumstanc- es.” Pauly, supra, at ___ (slip op., at 6). And it should go without saying that this is not an “obvious case” where “a body of relevant case law” is not needed. Brosseau, supra, at 199. The officers were thus entitled to qualified immunity. B The panel majority did not follow this straightforward analysis. It instead reasoned that, under clearly estab- lished District law, a suspect’s “good purpose and bona fide belief of her right to enter” vitiates probable cause to arrest her for unlawful entry. 765 F.3d, at 26–27. The panel majority then concluded—in a two-sentence para- graph without any explanation—that the officers must have known that “uncontroverted evidence of an invitation to enter the premises would vitiate probable cause for unlawful entry.” Id., at 27. By treating the invitation as “uncontroverted evidence,” the panel majority assumed that the officers could not infer the partygoers’ intent from other circumstances. And by treating the invitation as if it automatically vitiated probable cause, the panel majority assumed that the officers could not disbelieve the party- goers’ story. Cite as: 583 U. S. ____ (2018) 17 Opinion of the Court The rule applied by the panel majority was not clearly established because it was not “settled law.” Hunter, 502 U.S., at 228. The panel majority relied on a single deci- sion, Smith v. United States, 281 A.2d 438 (D. C. 1971).8 The defendant in Smith, who was found trespassing in a locked construction site near midnight, asserted that he was entitled to a jury instruction explaining that a bona fide belief of a right to enter is a complete defense to un- lawful entry. Id., at 439–440. The D. C. Court of Appeals affirmed the trial court’s refusal to give the instruction because the defendant had not established a “reasonable basis” for his alleged bona fide belief. Ibid. Smith does not say anything about whether the officers here could infer from all the evidence that the partygoers knew that they were trespassing. Nor would it have been clear to every reasonable officer that, in these circumstances, the partygoers’ bona fide belief that they were invited to the house was “uncontro- verted.” The officers knew that the partygoers had en- tered the home against the will of the owner. And District case law suggested that officers can infer a suspect’s guilty state of mind based solely on his conduct.9 In Tillman v. —————— 8 We have not yet decided what precedents—other than our own— qualify as controlling authority for purposes of qualified immunity. See, e.g., Reichle v. Howards, 566 U.S. 658, 665–666 (2012) (reserving the question whether court of appeals decisions can be “a dispositive source of clearly established law”). We express no view on that ques- tion here. Relatedly, our citation to and discussion of various lower court precedents should not be construed as agreeing or disagreeing with them, or endorsing a particular reading of them. See City and County of San Francisco v. Sheehan, 575 U. S. ___, ___, n. 4 (2015) (slip op., at 14, n. 4). Instead, we address only how a reasonable official “could have interpreted” them. Reichle, supra, at 667. 9 The officers cited many of these authorities in their opening brief to the Court of Appeals. See Brief for Appellants in No. 12–7127 (CADC), pp. 28–29. Yet the panel majority failed to mention any of them in its analysis of qualified immunity. 18 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court Washington Metropolitan Area Transit Authority, 695 A.2d 94 (D. C. 1997), for example, the D. C. Court of Appeals held that officers had probable cause to believe the plaintiff knowingly entered the paid area of a subway station without paying. Id., at 96. The court rejected the argument that “the officers had no reason to believe that [the suspect] was ‘knowingly’ in the paid area” because the officers “reasonably could have inferred from [the sus- pect’s] undisputed conduct that he had the intent re- quired.” Ibid. The court emphasized that officers can rely on “the ordinary and reasonable inference that people know what they are doing when they act.” Ibid. The court also noted that “it would be an unusual case where the circumstances, while undoubtedly proving an unlawful act, nonetheless demonstrated so clearly that the suspect lacked the required intent that the police would not even have probable cause for an arrest.” Ibid. And the fact that a case is unusual, we have held, is “an important indication . . . that [the officer’s] conduct did not violate a ‘clearly established’ right.” Pauly, 580 U. S., at ___ (slip op., at 7). Moreover, existing precedent would have given the officers reason to doubt that they had to accept the party- goers’ assertion of a bona fide belief. The D. C. Court of Appeals has held that officers are not required to take a suspect’s innocent explanation at face value. See, e.g., Nichols v. Woodward & Lothrop, Inc., 322 A.2d 283, 286 (1974) (holding that an officer was not “obliged to believe the explanation of a suspected shoplifter”). Similar prece- dent exists in the Federal Courts of Appeals, which have recognized that officers are free to disregard either all innocent explanations,10 or at least innocent explanations —————— 10 See, e.g., Borgman v. Kedley, 646 F.3d 518, 524 (CA8 2011) (“[An officer] need not rely on an explanation given by the suspect”); Cox v. Hainey, 391 F.3d 25, 32, n. 2 (CA1 2004) (“A reasonable police officer is Cite as: 583 U. S. ____ (2018) 19 Opinion of the Court that are inherently or circumstantially implausible.11 These cases suggest that innocent explanations— even uncontradicted ones—do not have any automatic, probable-cause-vitiating effect. For these reasons, a reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that offic- ers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value. Indeed, several prece- dents suggested the opposite. The officers were thus entitled to summary judgment based on qualified immunity. * * * The judgment of the D. C. Circuit is therefore reversed, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. —————— not required to credit a suspect’s story”); Marx v. Gumbinner, 905 F.2d 1503, 1507, n. 6 (CA11 1990) (“[Officers a]re not required to forego arresting [a suspect] based on initially discovered facts showing proba- ble cause simply because [the suspect] offered a different explanation”); Criss v. Kent, 867 F.2d 259, 263 (CA6 1988) (“A policeman . . . is under no obligation to give any credence to a suspect’s story . . . ”). 11 See e.g., Ramirez v. Buena Park, 560 F.3d 1012, 1024 (CA9 2009) (holding that “innocent explanations for [a suspect’s] odd behavior cannot eliminate the suspicious facts” and that “law enforcement officers do not have to rule out the possibility of innocent behavior” (internal quotation marks omitted)); United States v. Edwards, 632 F.3d 633, 640 (CA10 2001) (holding that probable cause existed where the suspect “offered only implausible, inconsistent explanations of how he came into possession of the money”); Bradway v. Gonzales, 26 F.3d 313, 321 (CA2 1994) (holding that “[a] reasonable officer who found the [stolen items], and who heard [the suspect’s] implausible explanation for possessing them, would have believed that probable cause existed”). Cite as: 583 U. S. ____ (2018) 1 Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1485 _________________ DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. THEODORE WESBY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [January 22, 2018] JUSTICE SOTOMAYOR, concurring in part and concurring in the judgment. I agree with the majority that the officers here are entitled to qualified immunity and, for that reason alone, I concur in the Court’s judgment reversing the judgment of the Court of Appeals for the District of Columbia. But, I disagree with the majority’s decision to reach the merits of the probable-cause question, which it does apparently only to ensure that, in addition to respondents’ 42 U.S. C. §1983 claims, the Court’s decision will resolve respond- ents’ state-law claims of false arrest and negligent su- pervision. See ante, at 13, n. 7. It is possible that our qualified-immunity decision alone will resolve those claims. See Reply Brief 20, n. 7. In light of the lack of a dispute on an important legal question and the heavily factbound nature of the probable-cause determination here, I do not think that the Court should have reached that issue. The lower courts are well equipped to handle the remaining state-law claims in the first instance. Cite as: 583 U. S. ____ (2018) 1 OPINION OF GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 15–1485 _________________ DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. THEODORE WESBY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [January 22, 2018] JUSTICE GINSBURG, concurring in the judgment in part. This case, well described in the opinion of the Court of Appeals,* leads me to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted. See ante, at 4, n. 2. No arrests of plaintiffs-respondents were made until Sergeant Suber so instructed. His instruction, when conveyed to the officers he superintended, was based on an error of law. Sergeant Suber believed that the absence of the premises owner’s consent, an uncontested fact in this case, sufficed to justify arrest of the partygoers for unlawful entry. See App. 60 (Suber deposition) (officers had probable cause to arrest because “Peaches did not have the right, nor did the [party- goers] have the right[,] to be inside that location”). An essential element of unlawful entry in the District of Columbia is that the defendant “knew or should have known that his entry was unwanted.” Ortberg v. United States, 81 A.3d 303, 308 (D. C. 2013). But under Sergeant Suber’s view of the law, what the arrestees knew or should have known was irrelevant. They could be arrested, as he comprehended the law, even if they believed their entry —————— * The Court’s account of the undisputed facts goes beyond those re- cited by the Court of Appeals. Compare ante, at 1–3, with 765 F.3d 13, 17–18 (CADC 2014). 2 DISTRICT OF COLUMBIA v. WESBY Opinion of GINSBURG, J. was invited by a lawful occupant. Ultimately, plaintiffs-respondents were not booked for unlawful entry. Instead, they were charged at the police station with disorderly conduct. Yet no police officers at the site testified to having observed any activities war- ranting a disorderly conduct charge. Quite the opposite. The officers at the scene of the arrest uniformly testified that they had neither seen nor heard anything that would justify such a charge, and Sergeant Suber specifically advised his superiors that the charge was unwarranted. See 765 F.3d 13, 18 (CADC 2014); App. 56, 62–63, 79, 84, 90, 103. The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A num- ber of commentators have criticized the path we charted in Whren v. United States, 517 U.S. 806 (1996), and follow-on opinions, holding that “an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). See, e.g., 1 W. LaFave, Search and Seizure §1.4(f ), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry. Given the current state of the Court’s precedent, however, I agree that the disposition gained by plaintiffs-respondents was not warranted by “settled law.” The defendants-petitioners are therefore sheltered by qualified immunity

This case involves a civil suit against the District of Columbia and five of its police officers, brought by 16 individuals who were arrested for holding a raucous, late- night party in a house they did not have permission to enter. The United States Court of Appeals for the District of Columbia Circuit held that there was no probable cause to arrest the partygoers, and that the officers were not entitled to qualified immunity. We reverse on both grounds. I Around 1 a.m. on March 16, 2008, the District’s Metro- politan Police Department received a complaint about loud music and illegal activities at a house in Northeast D. C. The caller, a former neighborhood commissioner, told police that the house had been vacant for several months. When officers arrived at the scene, several neighbors confirmed that the house should have been empty. The officers approached the house and, consistent with the complaint, heard loud music playing inside. After the officers knocked on the front door, they saw a 2 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court man look out the window and then run upstairs. One of the partygoers opened the door, and the officers entered. They immediately observed that the inside of the house “ ‘was in disarray’ ” and looked like “ ‘a vacant property.’ ” The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the floor was so dirty that one of the partygoers refused to sit on it while being questioned. Although the house had working electricity and plumbing, it had no furniture downstairs other than a few padded metal chairs. The only other signs of habita- tion were blinds on the windows, food in the refrigerator, and toiletries in the bathroom. In the living room, the officers found a makeshift strip club. Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol. After seeing the uniformed officers, many partygoers scattered into other parts of the ho The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out. The officers found a total of people in the ho After interviewing all the officers did not get a clear or consistent story. Many partygoers said they were there for a bachelor party, but no one could identify the bache- lor. Each of the partygoers claimed that someone had invited them to the house, but no one could say who. Two of the women working the party said that a woman named “Peaches” or “Tasty” was renting the house and had given Cite as: 583 U. S. (20) 3 Opinion of the Court them permission to be there. One of the women explained that the previous owner had recently passed away, and Peaches had just started renting the house from the grandson who inherited it. But the house had no boxes or moving supplies. She did not know Peaches’ real name. And Peaches was not there. An officer asked the woman to call Peaches on her phone so he could talk to her. Peaches answered and explained that she had just left the party to go to the store. When the officer asked her to return, Peaches refused because she was afraid of being arrested. The sergeant supervising the investigation also spoke with Peaches. At first, Peaches claimed to be renting the house from the owner, who was fixing it up for her. She also said that she had given the attendees permission to have the When the sergeant again asked her who had given her permission to use the house, Peaches became evasive and hung up. The sergeant called her back, and she began yelling and insisting that she had permission before hang- ing up a second time. The officers eventually got Peaches on the phone again, and she admitted that she did not have permission to use the ho The officers then contacted the owner. He told them that he had been trying to negotiate a lease with Peaches, but they had not reached an agreement. He confirmed that he had not given Peaches (or anyone else) permission to be in the house—let alone permission to use it for a bachelor At that point, the officers arrested the partygoers for unlawful See D. C. Code (2008). The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct. See The partygoers were released, and the charges were eventually dropped.1 —————— 1 In their merits brief, the partygoers attempt to dispute several of these facts. See Brief for Respondents 26–30. But the facts they now 4 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court II Respondents, 16 of the partygoers, sued the District and five of the arresting officers. They sued the officers for false arrest under the Fourth Amendment, Rev. Stat. 42 U.S. C. and under District law. They sued the District for false arrest and negligent supervision under District law. The partygoers’ claims were all “pred- icated upon the allegation that [they] were arrested with- out probable ca” On cross-motions for summary judgment, the District Court awarded partial summary judgment to the party- goers. at 48–49. It concluded that the officers lacked probable cause to arrest the partygoers for unlawful en- try.2 –33. The officers were told that Peaches had invited the partygoers to the house, the District Court reasoned, and nothing the officers learned in their investi- gation suggested the partygoers “ ‘knew or should have known that [they were] entering against the [owner’s] will.’ ” The District Court also concluded that the officers were not entitled to qualified immunity under —————— contest were presented in the petition for a writ of certiorari, and the partygoers did not contest them in their brief in opposition. Under this Court’s Rule 15.2, the partygoers’ failure to contest these factual assertions at the certiorari stage waived their right to do so at the merits stage. See Furthermore, although both parties moved for summary judgment, the undisputed facts here are sufficient to resolve both probable cause and qualified immunity. Our analysis thus would not change no matter which party is considered the moving Cf. Scott v. Harris, 550 U.S. 372, 378–379 (2007) (explaining that, at summary judgment, courts must view the facts and draw reasonable inferences in favor of the nonmoving party). 2 Because probable cause is an objective standard, an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. See Because unlawful entry is the only offense that the District and its officers discuss in their briefs to this Court, we likewise limit our analysis to that offense. Cite as: 583 U. S. (20) 5 Opinion of the Court It noted that, under District case law, “probable cause to arrest for unlawful entry requires evidence that the alleged intruder knew or should have known, upon entry, that such entry was against the will of the owner.” And in its view, the officers had no such evi- dence. –33, 37–38. With liability resolved, the case proceeded to trial on damages. The jury awarded the partygoers a total of $680,000 in compensatory damages. After the District Court awarded attorney’s fees, the total award was nearly $1 million. On appeal, a divided panel of the D. C. Circuit affirmed. On the question of probable cause, the panel majority made Peaches’ invitation “central” to its determination that the officers lacked probable cause to arrest the party- goers for unlawful The panel majority asserted that, “in the absence of any con- flicting information, Peaches’ invitation vitiates the neces- sary element of [the partygoers’] intent to enter against the will of the lawful owner.” And the panel major- ity determined that “there is simply no evidence in the record that [the partygoers] had any reason to think the invitation was invalid.” On the question of qualified immunity, the panel major- ity determined that it was “perfectly clear” that a person with “a good purpose and bona fide belief of her right to enter” lacks the necessary intent for unlawful In other words, the officers needed “some evidence” that the partygoers “knew or should have known they were entering against the will of the lawful owner.” —————— 3 The District Court granted summary judgment against two of the officers, but denied summary judgment against the other three because there were triable issues regarding qualified immunity. See 841 F. Supp. 2d 20, 32–46 The partygoers voluntarily dismissed their claims against those three officers. See 6 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court And here, the panel majority asserted, the officers must “have known that uncontroverted evidence of an invitation to enter the premises would vitiate probable cause for unlawful ” Judge Brown dissented. She concluded that summary judgment on the false-arrest claims was improper because, under the totality of the circumstances, a reasonable officer “could disbelieve [the partygoers’] claim of innocent entry” and infer that they knew or should have known that they did not have permission to be in the ho at 34. She also disagreed with the denial of qualified immunity, contending that a reasonable officer could have found probable cause to arrest in this “unusual factual scenario, not well represented in the controlling case law.” The D. C. Circuit denied rehearing en banc over the dissent of four judges. The dissenters focused on qualified immunity, contending that the panel opinion “contra- vene[d] emphatic Supreme Court directives” that “police officers may not be held liable for damages unless the officers were ‘plainly incompetent’ or ‘knowingly vio- late[d]’ clearly established law.” ( per curiam) (slip op., at 4)). The panel majority— Judges Pillard and Edwards—responded in a joint concurrence. –101. They insisted that the panel opinion did not misapply the law of qualified immunity, and that their disagreement with the dissenters was a mere “case- specific assessment of the circumstantial evidence in the record.” We granted certiorari to resolve two questions: whether the officers had probable cause to arrest the partygoers, and whether the officers were entitled to qualified immun- ity. See 580 U. S. (20). We address each question in turn. Cite as: 583 U. S. (20) 7 Opinion of the Court III The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Because arrests are “seizures” of “persons,” they must be reasonable under the circumstances. See A warrantless arrest is reasonable if the officer has probable cause to believe that the suspect committed a crime in the officer’s presence. 532 U.S. 8, To determine whether an officer had probable cause for an arrest, “we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable ca” ). Because probable cause “deals with probabilities and depends on the totality of the circumstances,” 540 U.S., 1, it is “a fluid concept” that is “not readily, or even usefully, reduced to a neat set of legal rules,” 462 U.S. 3, It “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” at 243–244, n. Probable cause “is not a high bar.” Kaley v. United States, 571 U. S. (slip op., at ). A There is no dispute that the partygoers entered the house against the will of the owner. Nonetheless, the partygoers contend that the officers lacked probable cause to arrest them because the officers had no reason to be- lieve that they “knew or should have known” their “entry was unwanted.” (D. C. 20). We disagree. Considering the totality of the circumstances, the officers made an “entirely reason- 8 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court able inference” that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night 2. Consider first the condition of the ho Multiple neighbors, including a former neighborhood official, in- formed the officers that the house had been vacant for several months.4 The house had no furniture, except for a few padded metal chairs and a bare mattress. The rest of the house was empty, save for some fixtures and large appliances. The house had a few signs of inhabitance— working electricity and plumbing, blinds on the windows, toiletries in the bathroom, and food in the refrigerator. But those facts are not necessarily inconsistent with the house being unoccupied. The owner could have paid the utilities and kept the blinds while he looked for a new tenant, and the partygoers could have brought the food and toiletries. Although one woman told the officers that Peaches had recently moved in, the officers had reason to doubt that was true. There were no boxes or other moving supplies in the house; nor were there other possessions, such as clothes in the closet, suggesting someone lived there. In addition to the condition of the house, consider the partygoers’ conduct. The party was still going strong when the officers arrived after 1 a.m., with music so loud that it could be heard from outside. Upon entering the house, multiple officers smelled marijuana.5 The party- —————— 4 At oral argument, the partygoers argued that the house was not formally “vacant” under District law. Tr. of Oral Arg. 34. But a rea- sonable officer could infer that the complaining neighbors used the term “vacant” in the colloquial, not the legal, sense. 5 The panel majority dismissed this fact because the officers “did not see any evidence of drugs” and did “not attempt to justify [the] arrests” based on drug n. 5. But a reasonable officer could infer, based on the smell, that marijuana had been used in the ho See (noting that “the odor” of narcotics can “be evidence of the most persuasive character”). Cite as: 583 U. S. (20) 9 Opinion of the Court goers left beer bottles and cups of liquor on the floor, and they left the floor so dirty that one of them refused to sit on it. The living room had been converted into a make- shift strip club. Strippers in bras and thongs, with cash stuffed in their garter belts, were giving lap dances. Up- stairs, the officers found a group of men with a single, naked woman on a bare mattress—the only bed in the house—along with multiple open condom wrappers and a used condom. Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “ ‘common-sense conclusions about human behav- ior.’ ” at 2 ). Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized. The partygoers’ reaction to the officers gave them fur- ther reason to believe that the partygoers knew they lacked permission to be in the ho Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom. “[U]nprovoked flight upon noticing the police,” we have explained, “is certainly suggestive” of wrongdoing and can be treated as “suspicious behavior” that factors into the totality of the circumstances. Illinois v. 528 U.S. 119, 124–125 (2000). In fact, “deliberately furtive actions and flight at the approach of law officers are strong indicia of mens rea.” Sibron v. New York, 392 U.S. 40, 66 (1968) A reasonable officer could —————— And the officers could consider the drug use inside the house as evi- dence that the partygoers knew their presence was unwelcome. 10 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court infer that the partygoers’ scattering and hiding was an indication that they knew they were not supposed to be there. The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them. Only two people claimed that Peaches had invited them, and they were working the party instead of attending it. If Peaches was the hostess, it was odd that none of the partygoers men- tioned her name. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor. Based on the vagueness and implau- sibility of the partygoers’ stories, the officers could have reasonably inferred that they were lying and that their lies suggested a guilty mind. Cf. 543 U.S. 146, 149, 155–156 (noting that the suspect’s “untruthful and evasive” answers to police questioning could support probable cause). The panel majority relied heavily on the fact that Peaches said she had invited the partygoers to the ho But when the officers spoke with Peaches, she was nerv- ous, agitated, and evasive. Cf. (explaining that the police can take a suspect’s “nervous, evasive behavior” into account). After initially insisting that she had permission to use the house, she ultimately confessed that this was a lie—a fact that the owner con- firmed. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she had told them. For example, the officers could have inferred that Peaches lied to them when she said she had invited the others to the house, which was consistent with the fact that hardly anyone at the party knew her name. Or the officers could Cite as: 583 U. S. (20) 11 Opinion of the Court have inferred that Peaches told the partygoers (like she eventually told the police) that she was not actually rent- ing the house, which was consistent with how the party- goers were treating it. Viewing these circumstances as a whole, a reasonable officer could conclude that there was probable cause to believe the partygoers knew they did not have permission to be in the ho B In concluding otherwise, the panel majority engaged in an “excessively technical dissection” of the factors support- ing probable ca Indeed, the panel majority failed to follow two basic and well- established principles of law. First, the panel majority viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” 540 U.S., 2, n. 2. This was “mistaken in light of our precedents.” The “totality of the circum- stances” requires courts to consider “the whole picture.” at 4. Our precedents recognize that the whole is often greater than the sum of its parts— especially when the parts are viewed in isolation. See United Instead of considering the facts as a whole, the panel majority took them one by one. For example, it dismissed the fact that the partygoers “scattered or hid when the police entered the house” because that fact was “not suffi- cient standing alone to create probable ca” 765 F.3d, at 23 Similarly, it found “nothing in the record suggesting that the condition of the house, on its own, should have alerted the [partygoers] that they were unwelcome.” The totality-of- the-circumstances test “precludes this sort of divide-and- conquer analysis.” Second, the panel majority mistakenly believed that it 12 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court could dismiss outright any circumstances that were “sus- ceptible of innocent explanation.” For exam- ple, the panel majority brushed aside the drinking and the lap dances as “consistent with” the partygoers’ explanation that they were having a bachelor And it similarly dismissed the condition of the house as “entirely consistent with” Peaches being a “new tenant.” But probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts. As we have explained, “the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of noncriminal acts.” n. Thus, the panel majority should have asked whether a reasonable officer could conclude—considering all of the surrounding cir- cumstances, including the plausibility of the explanation itself—that there was a “substantial chance of criminal activity.” The circumstances here certainly suggested criminal activity. As explained, the officers found a group of people who claimed to be having a bachelor party with no bache- lor, in a near-empty house, with strippers in the living room and sexual activity in the bedroom, and who fled at the first sign of police. The panel majority identified innocent explanations for most of these circumstances in isolation, but again, this kind of divide-and-conquer ap- proach is improper. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. And here, the totality of the circumstances gave the offic- ers plenty of reasons to doubt the partygoers’ protestations of innocence. For all of these reasons, we reverse the D. C. Circuit’s holding that the officers lacked probable cause to arrest. Accordingly, the District and its officers are entitled to Cite as: 583 U. S. (20) Opinion of the Court summary judgment on all of the partygoers’ claims.6 IV Our conclusion that the officers had probable cause to arrest the partygoers is sufficient to resolve this case. But where, as here, the Court of Appeals erred on both the merits of the constitutional claim and the question of qualified immunity, “we have discretion to correct its errors at each step.” 563 U.S. 7, 735 ; see, e.g., v. Rickard, 572 U. S. We exercise that discretion here because the D. C. Circuit’s analysis, if followed elsewhere, would “under- mine the values qualified immunity seeks to promote.” al-7 A Under our precedents, officers are entitled to qualified immunity under unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was “clearly established at the time.” “Clearly established” means that, at the time of the officer’s con- duct, the law was “ ‘sufficiently clear’ that every ‘reason- able official would understand that what he is doing’ ” is unlawful. al-, ). In other words, existing law must have placed the constitutionality of the officer’s conduct “beyond debate.” al-, This demanding standard protects “all but the plainly —————— 6 The partygoers do not contest that the presence of probable cause defeats all of their claims. 7 We continue to stress that lower courts “should think hard, and then think hard again,” before addressing both qualified immunity and the merits of an underlying constitutional claim. Camreta v. Greene, 563 U.S. 692, 707 We addressed the merits of probable cause here, however, because a decision on qualified immunity alone would not have resolved all of the claims in this case. 14 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court incompetent or those who knowingly violate the law.” To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U.S. 224, 228 (1) (per curiam), which means it is dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive authority,’ ” al-, –742 ). It is not enough that the rule is suggested by then-existing prece- dent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. See Otherwise, the rule is not one that “every reasonable official” would know. at (internal quotation marks omitted). The “clearly established” standard also requires that the legal principle clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” This requires a high “degree of specificity.” v. Luna, 577 U. S. (2015) (per curiam) (slip op., at 6). We have repeatedly stressed that courts must not “define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.” at – (slip op., at 12– ) (internal quotation marks and citation omitted). A rule is too general if the unlawfulness of the officer’s con- duct “does not follow immediately from the conclusion that [the rule] was firmly established.” at 641. In the context of a warrantless arrest, the rule must obviously resolve “whether ‘the circumstances with which [the particular officer] was confronted constitute[d] Cite as: 583 U. S. (20) 15 Opinion of the Court probable ca’ ” at (slip op., at 6) (quoting at –641; some alterations in original). We have stressed that the “specificity” of the rule is “especially important in the Fourth Amendment context.” at (slip op., at 5). Probable cause “turn[s] on the assessment of probabilities in particular factual contexts” and cannot be “reduced to a neat set of legal rules.” 462 U.S., at It is “incapable of precise definition or quantification into percentages.” 540 U.S., 1. Given its imprecise nature, officers will often find it difficult to know how the general standard of probable cause applies in “the precise situa- tion encountered.” Ziglar v. Abbasi, 582 U. S. (20) (slip op., at 28). Thus, we have stressed the need to “identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” White v. 580 U. S. (20) (per curiam) (slip op., at 6); e.g., at While there does not have to be “a case directly on point,” existing precedent must place the lawfulness of the par- ticular arrest “beyond debate.” al-, Of course, there can be the rare “obvious case,” where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances. (per curiam). But “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable ca Under these principles, we readily conclude that the officers here were entitled to qualified immunity. We start by defining “the circumstances with which [the officers] w[ere] confronted.” 483 U.S., at The officers found a group of people in a house that the neigh- bors had identified as vacant, that appeared to be vacant, and that the partygoers were treating as vacant. The 16 DISTRICT OF COLUMBIA v. WESBY Opinion of the Court group scattered, and some hid, at the sight of law en- forcement. Their explanations for being at the house were full of holes. The source of their claimed invitation admit- ted that she had no right to be in the house, and the owner confirmed that fact. Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to quali- fied immunity because they “reasonably but mistakenly conclude[d] that probable cause [wa]s present.” at 641. Tellingly, neither the panel majority nor the party- goers have identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment violation “under similar circumstanc- es.” at (slip op., at 6). And it should go without saying that this is not an “obvious case” where “a body of relevant case law” is not needed. at The officers were thus entitled to qualified immunity. B The panel majority did not follow this straightforward analysis. It instead reasoned that, under clearly estab- lished District law, a suspect’s “good purpose and bona fide belief of her right to enter” vitiates probable cause to arrest her for unlawful –27. The panel majority then concluded—in a two-sentence para- graph without any explanation—that the officers must have known that “uncontroverted evidence of an invitation to enter the premises would vitiate probable cause for unlawful ” By treating the invitation as “uncontroverted evidence,” the panel majority assumed that the officers could not infer the partygoers’ intent from other circumstances. And by treating the invitation as if it automatically vitiated probable cause, the panel majority assumed that the officers could not disbelieve the party- goers’ story. Cite as: 583 U. S. (20) Opinion of the Court The rule applied by the panel majority was not clearly established because it was not “settled law.” Hunter, 502 U.S., at 228. The panel majority relied on a single deci- sion,8 The defendant in Smith, who was found trespassing in a locked construction site near midnight, asserted that he was entitled to a jury instruction explaining that a bona fide belief of a right to enter is a complete defense to un- lawful at 439–440. The D. C. Court of Appeals affirmed the trial court’s refusal to give the instruction because the defendant had not established a “reasonable basis” for his alleged bona fide belief. Smith does not say anything about whether the officers here could infer from all the evidence that the partygoers knew that they were trespassing. Nor would it have been clear to every reasonable officer that, in these circumstances, the partygoers’ bona fide belief that they were invited to the house was “uncontro- verted.” The officers knew that the partygoers had en- tered the home against the will of the owner. And District case law suggested that officers can infer a suspect’s guilty state of mind based solely on his conduct.9 In Tillman v. —————— 8 We have not yet decided what precedents—other than our own— qualify as controlling authority for purposes of qualified immunity. See, e.g., (reserving the question whether court of appeals decisions can be “a dispositive source of clearly established law”). We express no view on that ques- tion here. Relatedly, our citation to and discussion of various lower court precedents should not be construed as agreeing or disagreeing with them, or endorsing a particular reading of them. See City and County of San Francisco v. Sheehan, 575 U. S. n. 4 (2015) (slip op., at 14, n. 4). Instead, we address only how a reasonable official “could have interpreted” them. 9 The officers cited many of these authorities in their opening brief to the Court of Appeals. See Brief for Appellants in No. 12–7127 (CADC), pp. 28–29. Yet the panel majority failed to mention any of them in its analysis of qualified immunity. DISTRICT OF COLUMBIA v. WESBY Opinion of the Court Washington Metropolitan Area Transit Authority, 695 A.2d 94 (D. C. 7), for example, the D. C. Court of Appeals held that officers had probable cause to believe the plaintiff knowingly entered the paid area of a subway station without paying. The court rejected the argument that “the officers had no reason to believe that [the suspect] was ‘knowingly’ in the paid area” because the officers “reasonably could have inferred from [the sus- pect’s] undisputed conduct that he had the intent re- quired.” The court emphasized that officers can rely on “the ordinary and reasonable inference that people know what they are doing when they act.” The court also noted that “it would be an unusual case where the circumstances, while undoubtedly proving an unlawful act, nonetheless demonstrated so clearly that the suspect lacked the required intent that the police would not even have probable cause for an arrest.” And the fact that a case is unusual, we have held, is “an important indication that [the officer’s] conduct did not violate a ‘clearly established’ right.” 580 U. S., at (slip op., at 7). Moreover, existing precedent would have given the officers reason to doubt that they had to accept the party- goers’ assertion of a bona fide belief. The D. C. Court of Appeals has held that officers are not required to take a suspect’s innocent explanation at face value. See, e.g., (1974) (holding that an officer was not “obliged to believe the explanation of a suspected shoplifter”). Similar prece- dent exists in the Federal Courts of Appeals, which have recognized that officers are free to disregard either all innocent explanations,10 or at least innocent explanations —————— 10 See, e.g., (“[An officer] need not rely on an explanation given by the suspect”); Cox v. Hainey, (“A reasonable police officer is Cite as: 583 U. S. (20) 19 Opinion of the Court that are inherently or circumstantially implausible.11 These cases suggest that innocent explanations— even uncontradicted ones—do not have any automatic, probable-cause-vitiating effect. For these reasons, a reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that offic- ers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value. Indeed, several prece- dents suggested the opposite. The officers were thus entitled to summary judgment based on qualified immunity. * * * The judgment of the D. C. Circuit is therefore reversed, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. —————— not required to credit a suspect’s story”); Marx v. Gumbinner, 905 F.2d 1503, 1507, n. 6 (CA11 0) (“[Officers a]re not required to forego arresting [a suspect] based on initially discovered facts showing proba- ble cause simply because [the suspect] offered a different explanation”); (“A policeman is under no obligation to give any credence to a suspect’s story ”). 11 See e.g., 4 (holding that “innocent explanations for [a suspect’s] odd behavior cannot eliminate the suspicious facts” and that “law enforcement officers do not have to rule out the possibility of innocent behavior” (internal quotation marks omitted)); United States v. Edwards, 632 F.3d 633, (holding that probable cause existed where the suspect “offered only implausible, inconsistent explanations of how he came into possession of the money”); Bradway v. Gonzales, 26 F.3d 3, 3 (CA2 4) (holding that “[a] reasonable officer who found the [stolen items], and who heard [the suspect’s] implausible explanation for possessing them, would have believed that probable cause existed”). Cite as: 583 U. S. (20) 1 Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES No. 15–1485 DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. THEODORE WESBY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [January 22, 20] JUSTICE SOTOMAYOR, concurring in part and concurring in the judgment. I agree with the majority that the officers here are entitled to qualified immunity and, for that reason alone, I concur in the Court’s judgment reversing the judgment of the Court of Appeals for the District of Columbia. But, I disagree with the majority’s decision to reach the merits of the probable-cause question, which it does apparently only to ensure that, in addition to respondents’ 42 U.S. C. claims, the Court’s decision will resolve respond- ents’ state-law claims of false arrest and negligent su- pervision. See ante, at n. 7. It is possible that our qualified-immunity decision alone will resolve those claims. See Reply Brief 20, n. 7. In light of the lack of a dispute on an important legal question and the heavily factbound nature of the probable-cause determination here, I do not think that the Court should have reached that issue. The lower courts are well equipped to handle the remaining state-law claims in the first instance. Cite as: 583 U. S. (20) 1 OPINION OF GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 15–1485 DISTRICT OF COLUMBIA, ET AL., PETITIONERS v. THEODORE WESBY, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [January 22, 20] JUSTICE GINSBURG, concurring in the judgment in part. This case, well described in the opinion of the Court of Appeals,* leads me to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted. See ante, at 4, n. 2. No arrests of plaintiffs-respondents were made until Sergeant Suber so instructed. His instruction, when conveyed to the officers he superintended, was based on an error of law. Sergeant Suber believed that the absence of the premises owner’s consent, an uncontested fact in this case, sufficed to justify arrest of the partygoers for unlawful See App. 60 (Suber deposition) (officers had probable cause to arrest because “Peaches did not have the right, nor did the [party- goers] have the right[,] to be inside that location”). An essential element of unlawful entry in the District of Columbia is that the defendant “knew or should have known that his entry was unwanted.” (D. C. 20). But under Sergeant Suber’s view of the law, what the arrestees knew or should have known was irrelevant. They could be arrested, as he comprehended the law, even if they believed their entry —————— * The Court’s account of the undisputed facts goes beyond those re- cited by the Court of Appeals. Compare ante, at 1–3, with – 2 DISTRICT OF COLUMBIA v. WESBY Opinion of GINSBURG, J. was invited by a lawful occupant. Ultimately, plaintiffs-respondents were not booked for unlawful Instead, they were charged at the police station with disorderly conduct. Yet no police officers at the site testified to having observed any activities war- ranting a disorderly conduct charge. Quite the opposite. The officers at the scene of the arrest uniformly testified that they had neither seen nor heard anything that would justify such a charge, and Sergeant Suber specifically advised his superiors that the charge was unwarranted. See ; App. 56, 62–63, 79, 84, 90, 103. The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A num- ber of commentators have criticized the path we charted in 5 U.S. 806 and follow-on opinions, holding that “an arresting officer’s state of mind is irrelevant to the existence of probable cause,” See, e.g., 1 W. LaFave, Search and Seizure ), p. 6 (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry. Given the current state of the Court’s precedent, however, I agree that the disposition gained by plaintiffs-respondents was not warranted by “settled law.” The defendants-petitioners are therefore sheltered by qualified immunity

Justice Scalia

majority

Jinks v. Richland County

2003-04-22

https://www.courtlistener.com/opinion/127912/jinks-v-richland-county/

https://www.courtlistener.com/api/rest/v3/clusters/127912/

2002-043

The Supreme Court of South Carolina dismissed petitioner's lawsuit against Richland County (hereinafter respondent) as time barred. In doing so it held that 28 U.S. C. § 1367(d), which required the state statute of limitations to be tolled for the period during which petitioner's cause of action had previously been pending in federal court, is unconstitutional as applied to lawsuits brought against a State's political subdivisions. The issue before us is the validity of that constitutional determination. I A When a federal district court has original jurisdiction over a civil cause of action, § 1367 determines whether it may exercise supplemental jurisdiction over other claims that do not independently come within its jurisdiction, but that form part of the same Article III "case or controversy." Section 1367(a) provides: "Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such *459 supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties." As the introductory clause suggests, not every claim within the same "case or controversy" as the claim within the federal courts' original jurisdiction will be decided by the federal court; §§ 1367(b) and (c) describe situations in which a federal court may or must decline to exercise supplemental jurisdiction. Section 1367(c), for example, states: "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — "(1) the claim raises a novel or complex issue of State law, "(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, "(3) the district court has dismissed all claims over which it has original jurisdiction, or "(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." Thus, some claims asserted under § 1367(a) will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be refiled in state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied by state courts: "The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." *460 B On October 14, 1994, Carl H. Jinks was arrested and jailed for failure to pay child support. Four days later, while confined at respondent's detention center, he died of complications associated with alcohol withdrawal. In 1996, within the applicable statute of limitations, petitioner Susan Jinks, Carl Jinks's widow, brought an action in the United States District Court for the District of South Carolina against respondent, its detention center director, and its detention center physician. She asserted a cause of action under Rev. Stat. § 1979, 42 U.S. C. § 1983, and also supplemental claims for wrongful death and survival under the South Carolina Tort Claims Act. See S. C. Code Ann. § 15-78-10 et seq. (West Supp. 2002). On November 20, 1997, the District Court granted the defendants' motion for summary judgment on the § 1983 claim, and two weeks later issued an order declining to exercise jurisdiction over the remaining state-law claims, dismissing them without prejudice pursuant to 28 U.S. C. § 1367(c)(3). On December 18, 1997, petitioner filed her wrongful-death and survival claims in state court. After the jury returned a verdict of $80,000 against respondent on the wrongful-death claim, respondent appealed to the South Carolina Supreme Court, which reversed on the ground that petitioner's state-law claims were time barred. Although they would not have been time barred under § 1367(d)'s tolling rule, the State Supreme Court held that § 1367(d) was unconstitutional as applied to claims brought in state court against a State's political subdivisions, because it "interferes with the State's sovereign authority to establish the extent to which its political subdivisions are subject to suit." 349 S. C. 298, 304, 563 S.E.2d 104, 107 (2002). We granted certiorari, 537 U.S. 972 (2002). *461 II A Respondent and its amici first contend that § 1367(d) is facially invalid because it exceeds the enumerated powers of Congress. We disagree. Although the Constitution does not expressly empower Congress to toll limitations periods for state-law claims brought in state court, it does give Congress the authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution [Congress's Article I, § 8,] Powers and all other Powers vested by this Constitution in the Government of the United States ...." Art. I, § 8, cl. 18. The enactment of § 1367(d) was not the first time Congress prescribed the alteration of a state-law limitations period;[1] nor is this the first case in which we have ruled on its authority to do so. In Stewart v. Kahn, 11 Wall. *462 493 (1871), we upheld as constitutional a federal statute that tolled limitations periods for state-law civil and criminal cases for the time during which actions could not be prosecuted because of the Civil War. We reasoned that this law was both necessary and proper to carrying into effect the Federal Government's war powers, because it "remed[ied] the evils" that had arisen from the war. "It would be a strange result if those in rebellion, by protracting the conflict, could thus rid themselves of their debts, and Congress, which had the power to wage war and suppress the insurrection, had no power to remedy such an evil, which is one of its consequences." Id., at 507. Of course § 1367(d) has nothing to do with the war power. We agree with petitioner and intervenor United States, however, that § 1367(d) is necessary and proper for carrying into execution Congress's power "[t]o constitute Tribunals inferior to the supreme Court," U.S. Const., Art. I, § 8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise "[t]he judicial Power of the United States," Art. III, § 1. As to "necessity": The federal courts can assuredly exist and function in the absence of § 1367(d), but we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be "`absolutely necessary'" to the exercise of an enumerated power. See McCulloch v. Maryland, 4 Wheat. 316, 414-415 (1819). Rather, it suffices that § 1367(d) is "conducive to the due administration of justice" in federal court,[2] and is "plainly adapted" to that end, id., at 417, 421. Section 1367(d) is conducive to the administration of justice because it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court. In the pre-§ 1367(d) world, they had three basic choices: *463 First, they could condition dismissal of the state-law claim on the defendant's waiver of any statute-of-limitations defense in state court. See, e. g., Duckworth v. Franzen, 780 F.2d 645, 657 (CA7 1985); Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 778 (CADC 1982). That waiver could be refused, however, in which case one of the remaining two choices would have to be pursued. Second, they could retain jurisdiction over the state-law claim even though it would more appropriately be heard in state court. See Newman v. Burgin, 930 F.2d 955, 963-964 (CA1 1991) (collecting cases). That would produce an obvious frustration of statutory policy. And third, they could dismiss the state-law claim but allow the plaintiff to reopen the federal case if the state court later held the claim to be time barred. See, e. g., Rheaume v. Texas Dept. of Public Safety, 666 F.2d 925, 932 (CA5 1982). That was obviously inefficient. By providing a straightforward tolling rule in place of this regime, § 1367(d) unquestionably promotes fair and efficient operation of the federal courts and is therefore conducive to the administration of justice. And it is conducive to the administration of justice for another reason: It eliminates a serious impediment to access to the federal courts on the part of plaintiffs pursuing federal-and state-law claims that "derive from a common nucleus of operative fact," Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Prior to enactment of § 1367(d), they had the following unattractive options: (1) They could file a single federal-court action, which would run the risk that the federal court would dismiss the state-law claims after the limitations period had expired; (2) they could file a single state-law action, which would abandon their right to a federal forum; (3) they could file separate, timely actions in federal and state court and ask that the state-court litigation be stayed pending resolution of the federal case, which would increase litigation costs with no guarantee that the state court would oblige. Section 1367(d) replaces this selection of inadequate choices *464 with the assurance that state-law claims asserted under § 1367(a) will not become time barred while pending in federal court. We are also persuaded, and respondent does not deny, that § 1367(d) is "plainly adapted" to the power of Congress to establish the lower federal courts and provide for the fair and efficient exercise of their Article III powers. There is no suggestion by either of the parties that Congress enacted § 1367(d) as a "pretext" for "the accomplishment of objects not entrusted to the [federal] government," McCulloch, supra, at 423, nor is the connection between § 1367(d) and Congress's authority over the federal courts so attenuated as to undermine the enumeration of powers set forth in Article I, § 8, cf. United States v. Lopez, 514 U.S. 549, 567-568 (1995); United States v. Morrison, 529 U.S. 598, 615 (2000). Respondent and its amici further contend, however, that § 1367(d) is not a "proper" exercise of Congress's Article I powers because it violates principles of state sovereignty. See Printz v. United States, 521 U.S. 898, 923-924 (1997). Respondent views § 1367(d)'s tolling rule as a regulation of state-court "procedure," and contends that Congress may not, consistent with the Constitution, prescribe procedural rules for state courts' adjudication of purely state-law claims. See, e. g., Bellia, Federal Regulation of State Court Procedures, 110 Yale L. J. 947 (2001); Congressional Authority to Require State Courts to Use Certain Procedures in Products Liability Cases, 13 Op. Off. Legal Counsel 372, 373-374 (1989) (stating that "potential constitutional questions" arise when Congress "attempts to prescribe directly the state court procedures to be followed in products liability cases"). Assuming for the sake of argument that a principled dichotomy can be drawn, for purposes of determining whether an Act of Congress is "proper," between federal laws that regulate state-court "procedure" and laws that change the "substance" of state-law rights of action, we do not think that *465 state-law limitations periods fall into the category of "procedure" immune from congressional regulation. Respondent's reliance on Sun Oil Co. v. Wortman, 486 U.S. 717 (1988), which held a state statute of limitations to be "procedural" for purposes of the Full Faith and Credit Clause, is misplaced. As we noted in that very case, the meaning of "`substance'" and "`procedure'" in a particular context is "largely determined by the purposes for which the dichotomy is drawn." Id., at 726. For purposes of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), for example, statutes of limitations are treated as substantive. Guaranty Trust Co. v. York, 326 U.S. 99 (1945). Stewart v. Kahn, 11 Wall., at 506-507, provides ample support for the proposition that — if the substance-procedure dichotomy posited by respondent is valid — the tolling of limitations periods falls on the "substantive" side of the line. To sustain § 1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts. We therefore reject respondent's contention that § 1367(d) is facially unconstitutional. B Respondent next maintains that § 1367(d) should not be interpreted to apply to claims brought against a State's political subdivisions. We find this contention also to be without merit. The South Carolina Tort Claims Act, S. C. Code Ann. § 15-78-10 et seq. (West Supp. 2002), confers upon respondent an immunity from tort liability for any claim brought more than two years after the injury was or should have been discovered. In respondent's view, § 1367(d)'s extension of the time period in which a State's political subdivisions may be sued constitutes an impermissible abrogation of "sovereign immunity." That is not so. Although we have held that Congress lacks authority under Article I to override a State's immunity from suit in its own courts, see Alden v. Maine, *466 527 U.S. 706 (1999), it may subject a municipality to suit in state court if that is done pursuant to a valid exercise of its enumerated powers, see id., at 756. Section 1367(d) tolls the limitations period with respect to state-law causes of action brought against municipalities, but we see no reason why that represents a greater intrusion on "state sovereignty" than the undisputed power of Congress to override state-law immunity when subjecting a municipality to suit under a federal cause of action. In either case, a State's authority to set the conditions upon which its political subdivisions are subject to suit in its own courts must yield to the enactments of Congress. This is not an encroachment on "state sovereignty," but merely the consequence of those cases (which respondent does not ask us to overrule) which hold that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit. Nor do we see any reason to construe § 1367(d) not to apply to claims brought against a State's political subdivisions absent an "unmistakably clear" statement of the statute's applicability to such claims. Although we held in Raygor v. Regents of Univ. of Minn., 534 U.S. 533 (2002), that § 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise "serious constitutional doubt" in light of our decisions protecting a State's sovereign immunity from congressional abrogation, id., at 543. As we have just explained, however, no such constitutional doubt arises from holding that petitioner's claim against respondent — which is not a State, but a political subdivision of a State — falls under the definition of "any claim asserted under subsection (a)." § 1367(d) (emphasis added). In any event, the idea that an "unmistakably clear" statement is required before an Act of Congress may expose a local government to liability cannot possibly be reconciled with our holding in Monell v. New *467 York City Dept. of Social Servs., 436 U.S. 658 (1978), that municipalities are subject to suit as "persons" under § 1983. * * * The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

The Supreme Court of South Carolina dismissed petitioner's lawsuit against Richland County (hereinafter respondent) as time barred. In doing so it held that 28 U.S. C. 1367(d), which required the state statute of limitations to be tolled for the period during which petitioner's cause of action had previously been pending in federal court, is unconstitutional as applied to lawsuits brought against a State's political subdivisions. The issue before us is the validity of that constitutional determination. I A When a federal district court has original jurisdiction over a civil cause of action, 1367 determines whether it may exercise supplemental jurisdiction over other claims that do not independently come within its jurisdiction, but that form part of the same Article III "case or controversy." Section 1367(a) provides: "Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such *459 supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties." As the introductory clause suggests, not every claim within the same "case or controversy" as the claim within the federal courts' original jurisdiction will be decided by the federal court; 1367(b) and (c) describe situations in which a federal court may or must decline to exercise supplemental jurisdiction. Section 1367(c), for example, states: "The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — "(1) the claim raises a novel or complex issue of State law, "(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, "(3) the district court has dismissed all claims over which it has original jurisdiction, or "(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." Thus, some claims asserted under 1367(a) will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be refiled in state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, 1367(d) provides a tolling rule that must be applied by state courts: "The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." *460 B On October 14, 1994, Carl H. Jinks was arrested and jailed for failure to pay child support. Four days later, while confined at respondent's detention center, he died of complications associated with alcohol withdrawal. In 1996, within the applicable statute of limitations, petitioner Susan Jinks, Carl Jinks's widow, brought an action in the United States District Court for the District of South Carolina against respondent, its detention center director, and its detention center physician. She asserted a cause of action under Rev. Stat. 1979, 42 U.S. C. 1983, and also supplemental claims for wrongful death and survival under the South Carolina Tort Claims Act. See S. C. Code Ann. 15-78-10 et seq. On November 20, 1997, the District Court granted the defendants' motion for summary judgment on the 1983 claim, and two weeks later issued an order declining to exercise jurisdiction over the remaining state-law claims, dismissing them without prejudice pursuant to 28 U.S. C. 1367(c)(3). On December 18, 1997, petitioner filed her wrongful-death and survival claims in state court. After the jury returned a verdict of $80,000 against respondent on the wrongful-death claim, respondent appealed to the South Carolina Supreme Court, which reversed on the ground that petitioner's state-law claims were time barred. Although they would not have been time barred under 1367(d)'s tolling rule, the State Supreme Court held that 1367(d) was unconstitutional as applied to claims brought in state court against a State's political subdivisions, because it "interferes with the State's sovereign authority to establish the extent to which its political subdivisions are subject to suit." 349 S. C. 298, 304, We granted certiorari, *461 II A Respondent and its amici first contend that 1367(d) is facially invalid because it exceeds the enumerated powers of Congress. We disagree. Although the Constitution does not expressly empower Congress to toll limitations periods for state-law claims brought in state court, it does give Congress the authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution [Congress's Article I, 8,] Powers and all other Powers vested by this Constitution in the Government of the United States" Art. I, 8, cl. 18. The enactment of 1367(d) was not the first time Congress prescribed the alteration of a state-law limitations period;[1] nor is this the first case in which we have ruled on its authority to do so. In Stewart v. 11 Wall. *462 493 (1871), we upheld as constitutional a federal statute that tolled limitations periods for state-law civil and criminal cases for the time during which actions could not be prosecuted because of the Civil War. We reasoned that this law was both necessary and proper to carrying into effect the Federal Government's war powers, because it "remed[ied] the evils" that had arisen from the war. "It would be a strange result if those in rebellion, by protracting the conflict, could thus rid themselves of their debts, and Congress, which had the power to wage war and suppress the insurrection, had no power to remedy such an evil, which is one of its consequences." Of course 1367(d) has nothing to do with the war power. We agree with petitioner and intervenor United States, however, that 1367(d) is necessary and proper for carrying into execution Congress's power "[t]o constitute Tribunals inferior to the supreme Court," U.S. Const., Art. I, 8, cl. 9, and to assure that those tribunals may fairly and efficiently exercise "[t]he judicial Power of the United States," Art. III, 1. As to "necessity": The federal courts can assuredly exist and function in the absence of 1367(d), but we long ago rejected the view that the Necessary and Proper Clause demands that an Act of Congress be "`absolutely necessary'" to the exercise of an enumerated power. See Rather, it suffices that 1367(d) is "conducive to the due administration of justice" in federal court,[2] and is "plainly adapted" to that end, Section 1367(d) is conducive to the administration of justice because it provides an alternative to the unsatisfactory options that federal judges faced when they decided whether to retain jurisdiction over supplemental state-law claims that might be time barred in state court. In the pre- 1367(d) world, they had three basic choices: *463 First, they could condition dismissal of the state-law claim on the defendant's waiver of any statute-of-limitations defense in state court. See, e. g., ; Financial General Bankshares, That waiver could be refused, however, in which case one of the remaining two choices would have to be pursued. Second, they could retain jurisdiction over the state-law claim even though it would more appropriately be heard in state court. See That would produce an obvious frustration of statutory policy. And third, they could dismiss the state-law claim but allow the plaintiff to reopen the federal case if the state court later held the claim to be time barred. See, e. g., That was obviously inefficient. By providing a straightforward tolling rule in place of this regime, 1367(d) unquestionably promotes fair and efficient operation of the federal courts and is therefore conducive to the administration of justice. And it is conducive to the administration of justice for another reason: It eliminates a serious impediment to access to the federal courts on the part of plaintiffs pursuing federal-and state-law claims that "derive from a common nucleus of operative fact," Mine Prior to enactment of 1367(d), they had the following unattractive options: (1) They could file a single federal-court action, which would run the risk that the federal court would dismiss the state-law claims after the limitations period had expired; (2) they could file a single state-law action, which would abandon their right to a federal forum; (3) they could file separate, timely actions in federal and state court and ask that the state-court litigation be stayed pending resolution of the federal case, which would increase litigation costs with no guarantee that the state court would oblige. Section 1367(d) replaces this selection of inadequate choices *464 with the assurance that state-law claims asserted under 1367(a) will not become time barred while pending in federal court. We are also persuaded, and respondent does not deny, that 1367(d) is "plainly adapted" to the power of Congress to establish the lower federal courts and provide for the fair and efficient exercise of their Article III powers. There is no suggestion by either of the parties that Congress enacted 1367(d) as a "pretext" for "the accomplishment of objects not entrusted to the [federal] government," nor is the connection between 1367(d) and Congress's authority over the federal courts so attenuated as to undermine the enumeration of powers set forth in Article I, 8, cf. United ; United Respondent and its amici further contend, however, that 1367(d) is not a "proper" exercise of Congress's Article I powers because it violates principles of state sovereignty. See Respondent views 1367(d)'s tolling rule as a regulation of state-court "procedure," and contends that Congress may not, consistent with the Constitution, prescribe procedural rules for state courts' adjudication of purely state-law claims. See, e. g., Bellia, Federal Regulation of State Court Procedures, 110 Yale L. J. 947 (2001); Congressional Authority to Require State Courts to Use Certain Procedures in Products Liability Cases, 13 Op. Off. Legal Counsel 372, 373-374 (1989) (stating that "potential constitutional questions" arise when Congress "attempts to prescribe directly the state court procedures to be followed in products liability cases"). Assuming for the sake of argument that a principled dichotomy can be drawn, for purposes of determining whether an Act of Congress is "proper," between federal laws that regulate state-court "procedure" and laws that change the "substance" of state-law rights of action, we do not think that *465 state-law limitations periods fall into the category of "procedure" immune from congressional regulation. Respondent's reliance on Sun Oil which held a state statute of limitations to be "procedural" for purposes of the Full Faith and Credit Clause, is misplaced. As we noted in that very case, the meaning of "`substance'" and "`procedure'" in a particular context is "largely determined by the purposes for which the dichotomy is drawn." For purposes of Erie R. for example, statutes of limitations are treated as substantive. Guaranty Trust Stewart v. -507, provides ample support for the proposition that — if the substance-procedure dichotomy posited by respondent is valid — the tolling of limitations periods falls on the "substantive" side of the line. To sustain 1367(d) in this case, we need not (and do not) hold that Congress has unlimited power to regulate practice and procedure in state courts. We therefore reject respondent's contention that 1367(d) is facially unconstitutional. B Respondent next maintains that 1367(d) should not be interpreted to apply to claims brought against a State's political subdivisions. We find this contention also to be without merit. The South Carolina Tort Claims Act, S. C. Code Ann. 15-78-10 et seq. confers upon respondent an immunity from tort liability for any claim brought more than two years after the injury was or should have been discovered. In respondent's view, 1367(d)'s extension of the time period in which a State's political subdivisions may be sued constitutes an impermissible abrogation of "sovereign immunity." That is not so. Although we have held that Congress lacks authority under Article I to override a State's immunity from suit in its own courts, see it may subject a municipality to suit in state court if that is done pursuant to a valid exercise of its enumerated powers, see Section 1367(d) tolls the limitations period with respect to state-law causes of action brought against municipalities, but we see no reason why that represents a greater intrusion on "state sovereignty" than the undisputed power of Congress to override state-law immunity when subjecting a municipality to suit under a federal cause of action. In either case, a State's authority to set the conditions upon which its political subdivisions are subject to suit in its own courts must yield to the enactments of Congress. This is not an encroachment on "state sovereignty," but merely the consequence of those cases (which respondent does not ask us to overrule) which hold that municipalities, unlike States, do not enjoy a constitutionally protected immunity from suit. Nor do we see any reason to construe 1367(d) not to apply to claims brought against a State's political subdivisions absent an "unmistakably clear" statement of the statute's applicability to such claims. Although we held in that 1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise "serious constitutional doubt" in light of our decisions protecting a State's sovereign immunity from congressional abrogation, As we have just explained, however, no such constitutional doubt arises from holding that petitioner's claim against respondent — which is not a State, but a political subdivision of a State — falls under the definition of "any claim asserted under subsection (a)." 1367(d) (emphasis added). In any event, the idea that an "unmistakably clear" statement is required before an Act of Congress may expose a local government to liability cannot possibly be reconciled with our holding in that municipalities are subject to suit as "persons" under 1983. * * * The judgment of the Supreme Court of South Carolina is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Justice Souter

concurring

Jinks v. Richland County

2003-04-22

https://www.courtlistener.com/opinion/127912/jinks-v-richland-county/

https://www.courtlistener.com/api/rest/v3/clusters/127912/

2002-043

In joining the Court today, I do not signal any change of opinion from my dissent in Alden v. Maine, 527 U.S. 706, 760 (1999).

In joining the Court today, I do not signal any change of opinion from my dissent in

Justice Ginsburg

majority

Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, Inc.

2013-01-08

https://www.courtlistener.com/opinion/814955/los-angeles-county-flood-control-dist-v-natural-resources-defense/

https://www.courtlistener.com/api/rest/v3/clusters/814955/

2012-008

The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U.S. C. §1251 et seq., does the flow of water out of a concrete channel within a river rank as a “discharge of a pollutant”? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is “no.” They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–112 (2004), in which we accepted that pump- ing polluted water from one part of a water body into another part of the same body is not a discharge of pol- lutants under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We there- fore reverse that court’s judgment. Petitioner Los Angeles County Flood Control District (District) operates a “municipal separate storm sewer 2 LOS ANGELES COUNTY FLOOD CONTROL DIST. v. NATURAL RESOURCES DEFENSE COUNCIL, INC. Opinion of the Court system” (MS4)—a drainage system that collects, trans- ports, and discharges storm water. See 40 CFR §122.26(b)(8) (2012). See also §122.26(b)(13) (“Storm water means storm water runoff, snow melt runoff, and surface runoff and drainage.”). Because storm water is often heavily polluted, see 64 Fed. Reg. 68724–68727 (1999), the CWA and its implementing regulations require the operator of an MS4 serving a population of at least 100,000 to obtain a National Pollutant Discharge Elimina- tion System (NPDES) permit before discharging storm water into navigable waters. See 33 U.S. C. §§1311(a), 1342(p)(2)(C), and (D); 40 CFR §§122.26(a)(3), (b)(4), (b)(7). The District first obtained a NPDES permit for its MS4 in 1990; thereafter, the permit was several times renewed. Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880, 886 (CA9 2011). Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and several other de- fendants under §505 of the CWA, 33 U.S. C. §1365. They alleged, among other things, that water-quality measure- ments from monitoring stations located within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit. The District Court granted summary judgment to the District on these claims. It was undisputed, the District Court acknowledged, that “data from the Los Angeles River and San Gabriel River [monitoring] stations indi- cate[d] that water quality standards ha[d] repeatedly been exceeded for a number of pollutants, including aluminum, copper, cyanide, fecal coliform bacteria, and zinc.” App. to Pet. for Cert. 108. But numerous entities other than the District, the court added, discharge into the rivers up- stream of the monitoring stations. See id., at 115–116. See also 673 F.3d, at 889 (observing that the pollutants of “thousands of permitted dischargers” reach the rivers). Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court The record was insufficient, the District Court concluded, to warrant a finding that the District’s MS4 had dis- charged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations. The Ninth Circuit reversed in relevant part. The moni- toring stations for the Los Angeles and San Gabriel Riv- ers, the Court of Appeals said, are located in “concrete channels” constructed for flood-control purposes. Id., at 900. See also id., at 889 (describing the monitoring stations’ location). Based on this impression, the Court of Appeals held that a discharge of pollutants occurred under the CWA when the polluted water detected at the monitor- ing stations “flowed out of the concrete channels” and entered downstream portions of the waterways lacking concrete linings. Id., at 900. Because the District exer- cises control over the concrete-lined portions of the rivers, the Court of Appeals held, the District is liable for the discharges that, in the appellate court’s view, occur when water exits those concrete channels. See id., at 899–901. We granted certiorari on the following question: Under the CWA, does a “discharge of pollutants” occur when polluted water “flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river,” and then “into a lower portion of the same river”? Pet. for Cert. i. See 567 U. S. ___ (2012). As noted above, see supra, at 1, the parties, as well as the United States as amicus curiae, agree that the answer to this question is “no.” That agreement is hardly surprising, for we held in Miccosukee that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the CWA. 541 U.S., at 109– 112. We derived that determination from the CWA’s text, which defines the term “discharge of a pollutant” to mean 4 LOS ANGELES COUNTY FLOOD CONTROL DIST. v. NATURAL RESOURCES DEFENSE COUNCIL, INC. Opinion of the Court “any addition of any pollutant to navigable waters from any point source.” 33 U.S. C. §1362(12) (emphasis added). Under a common understanding of the meaning of the word “add,” no pollutants are “added” to a water body when water is merely transferred between different por- tions of that water body. See Webster’s Third New Inter- national Dictionary 24 (2002) (“add” means “to join, annex, or unite (as one thing to another) so as to bring about an increase (as in number, size, or importance) or so as to form one aggregate”). “As the Second Circuit [aptly] put it . . . , ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot.’ ” Miccosukee, 541 U.S., at 109–110 (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F.3d 481, 492 (CA2 2001)). In Miccosukee, polluted water was removed from a ca- nal, transported through a pump station, and then de- posited into a nearby reservoir. 541 U.S., at 100. We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reser- voir were “meaningfully distinct water bodies.” Id., at 112. It follows, a fortiori, from Miccosukee that no dis- charge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another. We hold, therefore, that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the CWA. Because the decision below cannot be squared with that holding, the Court of Appeals’ judgment must be reversed.1 —————— 1 The NRDC, Baykeeper, and the United States contend—contrary to the District—that the Court of Appeals understood that no discharge of pollutants occurs when water flows from an improved into an unim- Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court The NRDC and Baykeeper urge that the Court of Ap- peals reached the right result, albeit for the wrong reason. The monitoring system proposed by the District and writ- ten into its permit showed numerous instances in which water-quality standards were exceeded. Under the per- mit’s terms, the NRDC and Baykeeper maintain, the ex- ceedances detected at the instream monitoring stations are by themselves sufficient to establish the District’s liability under the CWA for its upstream discharges. See Brief for Respondents 33–62.2 This argument failed be- low. See 673 F.3d, at 898, 901; App. to Pet. for Cert. 100– 102. It is not embraced within, or even touched by, the narrow question on which we granted certiorari. We therefore do not address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for the question we took up for review. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded. It is so ordered. JUSTICE ALITO concurs in the judgment. —————— proved portion of a navigable waterway. They suggest that the Court of Appeals misperceived the facts, erroneously believing that the monitor- ing stations for the Los Angeles and San Gabriel Rivers “were sampling water from a portion of the MS4 that was distinct from the rivers themselves and from which discharges through an outfall to the rivers subsequently occurred.” Brief for United States as Amicus Curiae 18. See also Brief for Respondents 30–31 (“The court of appeals’ statements suggest it believed the monitoring stations sampled polluted storm- water from the District’s MS4 before, not after, discharge to the Los Angeles and San Gabriel Rivers.”). Whatever the source of the Court of Appeals’ error, all parties agree that the court’s analysis was erroneous. 2 Shortly before oral argument in this case, a renewed permit was approved for the District’s MS4. Unlike the District’s prior permit, which required only instream monitoring, the renewed permit requires end-of-pipe monitoring at individual MS4 discharge points. See id., at 20–21; Reply Brief 5, n. 2

The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U.S. C. et seq., does the flow of water out of a concrete channel within a river rank as a “discharge of a pollutant”? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is “no.” They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–112 (2004), in which we accepted that pump- ing polluted water from one part of a water body into another part of the same body is not a discharge of pol- lutants under the Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We there- fore reverse that court’s judgment. Petitioner Los Angeles County Flood Control District (District) operates a “municipal separate storm sewer 2 LOS ANGELES COUNTY FLOOD CONTROL DIST. v. NATURAL RESOURCES DEFENSE COUNCIL, INC. Opinion of the Court system” (MS4)—a drainage system that collects, trans- ports, and discharges storm water. See 40 CFR (2012). See (“Storm water means storm water runoff, snow melt runoff, and surface runoff and drainage.”). Because storm water is often heavily polluted, see –68727 (1999), the CWA and its implementing regulations require the operator of an MS4 serving a population of at least 100,000 to obtain a National Pollutant Discharge Elimina- tion System (NPDES) permit before discharging storm water into navigable waters. See 33 U.S. C. 1342(p)(2)(C), and (D); (a)(3), (b)(4), (b)(7). The District first obtained a NPDES permit for its MS4 in 1990; thereafter, the permit was several times renewed. Natural Resources Defense Council, Respondents Natural Resources Defense Council, Inc. (NRDC) and Santa Monica Baykeeper (Baykeeper) filed a citizen suit against the District and several other de- fendants under of the CWA, 33 U.S. C. They alleged, among other things, that water-quality measure- ments from monitoring stations located within the Los Angeles and San Gabriel Rivers demonstrated that the District was violating the terms of its permit. The District Court granted summary judgment to the District on these claims. It was undisputed, the District Court acknowledged, that “data from the Los Angeles River and San Gabriel River [monitoring] stations indi- cate[d] that water quality standards ha[d] repeatedly been exceeded for a number of pollutants, including aluminum, copper, cyanide, fecal coliform bacteria, and zinc.” App. to Pet. for Cert. 108. But numerous entities other than the District, the court added, discharge into the rivers up- stream of the monitoring stations. See 15–116. See (observing that the pollutants of “thousands of permitted dischargers” reach the rivers). Cite as: 568 U. S. (2013) 3 Opinion of the Court The record was insufficient, the District Court concluded, to warrant a finding that the District’s MS4 had dis- charged storm water containing the standards-exceeding pollutants detected at the downstream monitoring stations. The Ninth Circuit reversed in relevant part. The moni- toring stations for the Los Angeles and San Gabriel Riv- ers, the Court of Appeals said, are located in “concrete channels” constructed for flood-control purposes. at 900. See (describing the monitoring stations’ location). Based on this impression, the Court of Appeals held that a discharge of pollutants occurred under the CWA when the polluted water detected at the monitor- ing stations “flowed out of the concrete channels” and entered downstream portions of the waterways lacking concrete linings. Because the District exer- cises control over the concrete-lined portions of the rivers, the Court of Appeals held, the District is liable for the discharges that, in the appellate court’s view, occur when water exits those concrete channels. See at 899–901. We granted certiorari on the following question: Under the CWA, does a “discharge of pollutants” occur when polluted water “flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river,” and then “into a lower portion of the same river”? Pet. for Cert. i. See 567 U. S. (2012). As noted above, see the parties, as well as the United States as amicus curiae, agree that the answer to this question is “no.” That agreement is hardly surprising, for we held in Miccosukee that the transfer of polluted water between “two parts of the same water body” does not constitute a discharge of pollutants under the 541 U.S., 09– 112. We derived that determination from the CWA’s text, which defines the term “discharge of a pollutant” to mean 4 LOS ANGELES COUNTY FLOOD CONTROL DIST. v. NATURAL RESOURCES DEFENSE COUNCIL, INC. Opinion of the Court “any addition of any pollutant to navigable waters from any point source.” 33 U.S. C. (emphasis added). Under a common understanding of the meaning of the word “add,” no pollutants are “added” to a water body when water is merely transferred between different por- tions of that water body. See Webster’s Third New Inter- national Dictionary 24 (2002) (“add” means “to join, annex, or unite (as one thing to another) so as to bring about an increase (as in number, size, or importance) or so as to form one aggregate”). “As the Second Circuit [aptly] put it ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added” soup or anything else to the pot.’ ” Miccosukee, 541 U.S., 09–110 (quoting Catskill Mountains Chapter of Trout Unlimited, (CA2 2001)). In Miccosukee, polluted water was removed from a ca- nal, transported through a pump station, and then de- posited into a nearby 541 U.S., 00. We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reser- voir were “meaningfully distinct water bodies.” at 112. It follows, a fortiori, from Miccosukee that no dis- charge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another. We hold, therefore, that the flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge of pollutants under the Because the decision below cannot be squared with that holding, the Court of Appeals’ judgment must be reversed.1 —————— 1 The NRDC, Baykeeper, and the United States contend—contrary to the District—that the Court of Appeals understood that no discharge of pollutants occurs when water flows from an improved into an unim- Cite as: 568 U. S. (2013) 5 Opinion of the Court The NRDC and Baykeeper urge that the Court of Ap- peals reached the right result, albeit for the wrong reason. The monitoring system proposed by the District and writ- ten into its permit showed numerous instances in which water-quality standards were exceeded. Under the per- mit’s terms, the NRDC and Baykeeper maintain, the ex- ceedances detected at the instream monitoring stations are by themselves sufficient to establish the District’s liability under the CWA for its upstream discharges. See Brief for Respondents 33–62.2 This argument failed be- low. See 901; App. to Pet. for Cert. 100– 102. It is not embraced within, or even touched by, the narrow question on which we granted certiorari. We therefore do not address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for the question we took up for review. * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded. It is so ordered. JUSTICE ALITO concurs in the judgment. —————— proved portion of a navigable waterway. They suggest that the Court of Appeals misperceived the facts, erroneously believing that the monitor- ing stations for the Los Angeles and San Gabriel Rivers “were sampling water from a portion of the MS4 that was distinct from the rivers themselves and from which discharges through an outfall to the rivers subsequently occurred.” Brief for United States as Amicus Curiae 18. See Brief for Respondents 30–31 (“The court of appeals’ statements suggest it believed the monitoring stations sampled polluted storm- water from the District’s MS4 before, not after, discharge to the Los Angeles and San Gabriel Rivers.”). Whatever the source of the Court of Appeals’ error, all parties agree that the court’s analysis was erroneous. 2 Shortly before oral argument in this case, a renewed permit was approved for the District’s MS4. Unlike the District’s prior permit, which required only instream monitoring, the renewed permit requires end-of-pipe monitoring at individual MS4 discharge points. See at 20–21; Reply Brief 5, n. 2

per_curiam

per_curiam

Adarand Constructors, Inc. v. Mineta

2001-11-27

https://www.courtlistener.com/opinion/1087984/adarand-constructors-inc-v-mineta/

https://www.courtlistener.com/api/rest/v3/clusters/1087984/

2001-006

We granted certiorari to review for a second time whether the Court of Appeals was correct when it concluded that the Department of Transportation's (DOT's) Disadvantaged Business Enterprise (DBE) program is consistent with the constitutional guaranty of equal protection. But upon full briefing and oral argument we find that the current posture of this case prevents review of that important question. To address it would require a threshold inquiry into issues decided by the Court of Appeals but not presented in the petition for certiorari. We therefore dismiss the writ of certiorari as improvidently granted. Six years ago in Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) (Adarand I), we held that strict scrutiny governs whether race-based classifications violate the equal protection component of the Fifth Amendment's Due Process Clause. See id., at 235 ("Federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest"). We remanded for a determination whether the race-based components of the DOT's DBE program could survive this standard of review. On remand, the District Court for the District of Colorado found that no such race-based component then in operation could so survive. Adarand Constructors, Inc. v. Peña, 965 F. Supp. 1556 (1997). The Court of Appeals vacated the District Court's judgment, reasoning that petitioner's cause of action had been mooted because the Colorado Department of Transportation had recently certified petitioner as a DBE. Adarand Constructors, Inc. v. Slater, 169 F.3d 1292, 1296— 1297 (CA10 1999). Finding it not at all clear that petitioner's certification was valid under DOT regulations, we again *106 granted certiorari, reversed the Court of Appeals, and remanded for a determination on the merits consistent with Adarand I. Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) (per curiam). Following the submission of supplemental briefs addressing statutory and regulatory changes that had occurred since the District Court's 1997 judgment favorable to petitioner, the Court of Appeals affirmed in part and reversed in part. 228 F.3d 1147 (CA10 2000). The Court of Appeals agreed with the District Court that the DOT's DBE program was unconstitutional as it was administered in 1997. It further agreed that the automatic use of financial incentives to encourage the award of subcontracts to DBEs, as originally contemplated by the DOT's Subcontractor Compensation Clause (SCC) program, was "unconstitutional under Adarand [I' s] strict standard of scrutiny." Id., at 1187. The Secretary of Transportation never challenged these rulings and has since discontinued any and all use of the SCC program. Brief for Respondents 2, 10, 13, 20, n. 3, 23. See also 228 F. 3d, at 1194 ("The government maintains, and Adarand does not dispute, that the SCC, which spawned this litigation in 1989, is no longer in use"); Tr. of Oral Arg. 25 ("[SCCs] ha[ve been] abandoned in all respects, [they] have not been justified, and the United States Government is not employing [them]"). The Court of Appeals next turned its attention to new regulations issued by the Secretary of Transportation under the Transportation Equity Act for the 21st Century (TEA— 21), § 1101(b)(1), 112 Stat. 113. See 49 CFR pt. 26 (1999). These regulations pertain almost exclusively to use of federal funds for highway projects let by States and localities, which the Court of Appeals found to be the only "relevant" aspect of the DBE program under review. 228 F. 3d, at 1160. The Court of Appeals further noted that petitioner either lacked standing or had waived its right to challenge any other race-conscious program. Ibid. Finally, the *107 Court of Appeals held that, by virtue of the new regulatory framework under which the DOT's state and local DBE program now operates, that program passed constitutional muster under Adarand I. 228 F. 3d, at 1176-1187. We again granted certiorari to decide whether the Court of Appeals misapplied the strict scrutiny standard announced in Adarand I. 532 U.S. 941 (2001). We anticipated that we would be able to review the same "relevant program" that was addressed by the Court of Appeals.[1] But since certiorari was granted there has been a shift in the posture of the case that precludes such review. Both parties agree that the Court of Appeals confined its opinion to the constitutionality of the DOT's DBE program as it pertains to the use of federal funds for highway projects let by States and localities. See Brief for Petitioner 15-17; Brief for Respondents 19-23. It is clear from its opinion that the Court of Appeals considered no other programs; its strict scrutiny analysis relies almost exclusively on regulations designed to channel benefits, through States and localities, to firms owned by individuals who hold themselves out to be socially and economically disadvantaged. See 228 F. 3d, at 1176-1188. These regulations clearly permit the award of contracts based on raceconscious measures in jurisdictions where petitioner operates, and, as the Government concedes, provide petitioner with a potential basis for prospective relief, at least to the extent petitioner challenges them. Brief for Respondents 3. It appeared at the certiorari stage that petitioner was indeed challenging these statutes and regulations. Nothing *108 in the petition for certiorari contested the Court of Appeals' determination that petitioner lacked standing to challenge the statutes and regulations relating to any other raceconscious program. The petition for certiorari simply noted the Court of Appeals' determination on this ground as a matter of fact, without further comment. Pet. for Cert. 4, nn. 2, 3. Petitioner now asserts, however, that it is not challenging any part of DOT's state and local procurement program. Instead, it claims to be challenging only the statutes and regulations that pertain to DOT's direct procurement of highway construction on federal lands. Brief for Petitioner 12-17. But the statutes and regulations relating to direct procurement are quite different from the statutes and regulations reviewed by the Court of Appeals. In particular, while procurement by States and localities is governed by the regulations issued by the Secretary of Transportation under TEA-21, direct federal procurement is governed by the Small Business Act, including §§ 8(d)(4)-(6), as added by § 211 of Pub. L. 95-507, 92 Stat. 1768, and as amended, 15 U.S. C. §§ 637(d)(4)-(6) (1994 ed. and Supp. V), and the regulations promulgated thereunder, 48 CFR pt. 19 (1998). This shift in posture requires dismissal of the writ for two reasons. First, the Court of Appeals has not considered whether the various race-based programs applicable to direct federal contracting could satisfy strict scrutiny. See 228 F. 3d, at 1189, n. 35 ("There is no indication from any of the parties in their briefs or elsewhere that the particular requirements of paragraphs (4)-(6) of § 8(d) are at issue in the instant lawsuit") (citing 15 U.S. C. §§ 637(d)(4)-(6) (1994 ed. and Supp. IV)); see also 228 F. 3d, at 1188-1189, n. 32 ("The parties have not addressed paragraph (4) of § 8(d) at all, and . . . we do not address it in great detail"). The Government also has not addressed such programs in its brief on the merits. Brief for Respondents 38-50. Petitioner urges us to take on this task ourselves, and apply *109 strict scrutiny in the first instance to a complex web of statutes and regulations without benefit of any lower court review. But in Adarand I, 515 U. S., at 238-239, we said that application of our strict scrutiny standard "should be addressed in the first instance by the lower courts." We ordinarily "do not decide in the first instance issues not decided below." National Collegiate Athletic Assn. v. Smith, 525 U.S. 459, 470 (1999). See also Glover v. United States, 531 U.S. 198, 205 (2001) ("In the ordinary course we do not decide questions neither raised nor resolved below"); Youakim v. Miller, 425 U.S. 231 (1976) (per curiam) (same). Second, to reach the merits of any challenge to statutes and regulations relating to direct federal procurement would require a threshold examination of whether petitioner has standing to challenge such statutes and regulations. Petitioner has sought to show that it does have such standing, but this showing was not made (and no argument was ever advanced) until three weeks before oral argument. It was made then in a reply brief submitted with a lodging of voluminous evidence that has never been presented to any lower court. Reply Brief for Petitioner 1-9. The Government has responded with a lodging of its own, contending that no race-conscious measures are used for direct procurement in any jurisdiction in which petitioner does business.[2] Whatever the merits of these competing positions, the petition for certiorari nowhere disputed the Court of Appeals' explicit *110 holding that petitioner lacked standing to challenge the very provisions petitioner now asks us to review. 228 F. 3d, at 1160 ("Nor are we presented with any indication that Adarand has standing to challenge paragraphs (4)-(6) of 15 U.S. C. § 637(d)"). We are obliged to examine standing sua sponte where standing has erroneously been assumed below. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 95 (1998) ("`[I]f the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it' ") (quoting United States v. Corrick, 298 U.S. 435, 440 (1936)). But we do not examine standing sua sponte simply to reach an issue for which standing has been denied below—exactly what petitioner asks that we do here. See, e. g., Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U.S. 27, 31-32 (1993) (per curiam) (discussing this Court's Rule 14.1(a) and the "heavy presumption" against reaching threshold questions not presented in the petition for certiorari (internal quotation marks and citations omitted)). "Mindful that this is a court of final review and not first view," Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 399 (1996) (Ginsburg, J., concurring in part and dissenting in part), we thus decline to reach the merits of petitioner's present challenge. Petitioner points out that this case presents questions of fundamental national importance calling for final resolution by this Court. But the importance of an issue should not distort the principles that control the exercise of our jurisdiction. To the contrary, "by adhering scrupulously to the customary limitations on our discretion regardless of the significance of the underlying issue, we promote respect . . . for the Court's adjudicatory process." Adams v. Robertson, 520 U.S. 83, 92, n. 6 (1997) (per curiam) (internal quotation marks omitted). We also "ensure that we are not tempted to engage in ill-considered *111 decisions of questions not presented in the petition." Izumi Seimitsu, supra, at 34. For the foregoing reasons, the writ of certiorari is dismissed as improvidently granted. It is so ordered.

We granted certiorari review for a second time whether the Court of Appeals was correct when it concluded that the Department of Transportation's (DOT's) Disadvantaged Business Enterprise (DBE) program is consistent with the constitutional guaranty of equal protection. But upon full briefing and oral argument we find that the current posture of this case prevents review of that important question. To address it would require a threshold inquiry in issues decided by the Court of Appeals but not presented in the petition for certiorari. We therefore dismiss the writ of certiorari as improvidently granted. Six years ago in Adarand Construcrs, we held that strict scrutiny governs whether race-based classifications violate the equal protection component of the Fifth Amendment's Due Process Clause. See We remanded for a determination whether the race-based components of the DOT's DBE program could survive this standard of On remand, the District Court for the District of Colorado found that no such race-based component then in operation could so survive. Adarand Construcrs, The Court of Appeals vacated the District Court's judgment, reasoning that petitioner's cause of action had been mooted because the Colorado Department of Transportation had recently certified petitioner as a DBE. Adarand Construcrs, Finding it not at all clear that petitioner's certification was valid under DOT regulations, we again *106 granted certiorari, reversed the Court of Appeals, and remanded for a determination on the merits consistent with Adarand Adarand Construcrs, Following the submission of supplemental briefs addressing statury and regulary changes that had occurred since the District Court's judgment favorable petitioner, the Court of Appeals affirmed in part and reversed in part. The Court of Appeals agreed with the District Court that the DOT's DBE program was unconstitutional as it was administered in t further agreed that the aumatic use of financial incentives encourage the award of subcontracts DBEs, as originally contemplated by the DOT's Subcontracr Compensation Clause (SCC) program, was "unconstitutional under Adarand [' s] strict standard of scrutiny." The Secretary of Transportation never challenged these rulings and has since discontinued any and all use of the SCC program. Brief for Respondents 2, 10, 13, 20, n. 3, 23. See ; Tr. of Oral Arg. 25 ("[SCCs] ha[ve been] abandoned in all respects, [they] have not been justified, and the United States Government is not employing [them]"). The Court of Appeals next turned its attention new regulations issued by the Secretary of Transportation under the Transportation Equity Act for the 21st Century (TEA— 21), 1101(b)(1), See 49 CFR pt. 26 These regulations pertain almost exclusively use of federal funds for highway projects let by States and localities, which the Court of Appeals found be the only "relevant" aspect of the DBE program under The Court of Appeals further noted that petitioner either lacked standing or had waived its right challenge any other race-conscious program. Finally, the *107 Court of Appeals held that, by virtue of the new regulary framework under which the DOT's state and local DBE program now operates, that program passed constitutional muster under Adarand -1187. We again granted certiorari decide whether the Court of Appeals misapplied the strict scrutiny standard announced in Adarand We anticipated that we would be able review the same "relevant program" that was addressed by the Court of Appeals.[1] But since certiorari was granted there has been a shift in the posture of the case that precludes such Both parties agree that the Court of Appeals confined its opinion the constitutionality of the DOT's DBE program as it pertains the use of federal funds for highway projects let by States and localities. See Brief for Petitioner 15-17; Brief for Respondents 19-23. t is clear from its opinion that the Court of Appeals considered no other programs; its strict scrutiny analysis relies almost exclusively on regulations designed channel benefits, through States and localities, firms owned by individuals who hold themselves out be socially and economically disadvantaged. See -1188. These regulations clearly permit the award of contracts based on raceconscious measures in jurisdictions where petitioner operates, and, as the Government concedes, provide petitioner with a potential basis for prospective relief, at least the extent petitioner challenges them. Brief for Respondents 3. t appeared at the certiorari stage that petitioner was indeed challenging these statutes and regulations. Nothing *108 in the petition for certiorari contested the Court of Appeals' determination that petitioner lacked standing challenge the statutes and regulations relating any other raceconscious program. The petition for certiorari simply noted the Court of Appeals' determination on this ground as a matter of fact, without further comment. Pet. for Cert. 4, nn. 2, 3. Petitioner now asserts, however, that it is not challenging any part of DOT's state and local procurement program. nstead, it claims be challenging only the statutes and regulations that pertain DOT's direct procurement of highway construction on federal lands. Brief for Petitioner 12-17. But the statutes and regulations relating direct procurement are quite different from the statutes and regulations reviewed by the Court of Appeals. n particular, while procurement by States and localities is governed by the regulations issued by the Secretary of Transportation under TEA-21, direct federal procurement is governed by the Small Business Act, including 8(d)(4)-(6), as added by 211 of Stat. 1768, and as amended, 15 U.S. C. 637(d)(4)-(6) (1994 ed. and Supp. V), and the regulations promulgated thereunder, 48 CFR pt. 19 This shift in posture requires dismissal of the writ for two reasons. First, the Court of Appeals has not considered whether the various race-based programs applicable direct federal contracting could satisfy strict scrutiny. See n. 35 of 8(d) are at issue in the instant lawsuit") (citing 15 U.S. C. 637(d)(4)-(6) (1994 ed. and Supp. V)); see -1189, n. 32 of 8(d) at all, and we do not address it in great detail"). The Government has not addressed such programs in its brief on the merits. Brief for Respondents 38-50. Petitioner urges us take on this task ourselves, and apply *109 strict scrutiny in the first instance a complex web of statutes and regulations without benefit of any lower court But in Adarand -239, we said that application of our strict scrutiny standard "should be addressed in the first instance by the lower courts." We ordinarily "do not decide in the first instance issues not decided below." National Collegiate Athletic See ("n the ordinary course we do not decide questions neither raised nor resolved below"); (same). Second, reach the merits of any challenge statutes and regulations relating direct federal procurement would require a threshold examination of whether petitioner has standing challenge such statutes and regulations. Petitioner has sought show that it does have such standing, but this showing was not made (and no argument was ever advanced) until three weeks before oral argument. t was made then in a reply brief submitted with a lodging of voluminous evidence that has never been presented any lower court. Reply Brief for Petitioner 1-9. The Government has responded with a lodging of its own, contending that no race-conscious measures are used for direct procurement in any jurisdiction in which petitioner does business.[2] Whatever the merits of these competing positions, the petition for certiorari nowhere disputed the Court of Appeals' explicit *110 holding that petitioner lacked standing challenge the very provisions petitioner now asks us of 15 U.S. C. 637(d)"). We are obliged examine standing sua sponte where standing has erroneously been assumed below. See Steel ("`[]f the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it' ") ). But we do not examine standing sua sponte simply reach an issue for which standing has been denied below—exactly what petitioner asks that we do here. See, e. g., zumi Kogyo Kabushiki (discussing this Court's Rule 14.1(a) and the "heavy presumption" against reaching threshold questions not presented in the petition for certiorari (internal quotation marks and citations omitted)). "Mindful that this is a court of final review and not first view," Matsushita Elec. ndustrial we thus decline reach the merits of petitioner's present challenge. Petitioner points out that this case presents questions of fundamental national importance calling for final resolution by this Court. But the importance of an issue should not disrt the principles that control the exercise of our jurisdiction. To the contrary, "by adhering scrupulously the cusmary limitations on our discretion regardless of the significance of the underlying issue, we promote respect for the Court's adjudicary process." (internal quotation marks omitted). We "ensure that we are not tempted engage in ill-considered *111 decisions of questions not presented in the petition." zumi For the foregoing reasons, the writ of certiorari is dismissed as improvidently granted. t is so ordered.

Justice Kennedy

majority

Overton v. Bazzetta

2003-06-16

https://www.courtlistener.com/opinion/130150/overton-v-bazzetta/

https://www.courtlistener.com/api/rest/v3/clusters/130150/

2002-073

The State of Michigan, by regulation, places certain restrictions on visits with prison inmates. The question before the Court is whether the regulations violate the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments as applicable to the States through the Fourteenth Amendment. *129 I The population of Michigan's prisons increased in the early 1990's. More inmates brought more visitors, straining the resources available for prison supervision and control. In particular, prison officials found it more difficult to maintain order during visitation and to prevent smuggling or trafficking in drugs. Special problems were encountered with the increase in visits by children, who are at risk of seeing or hearing harmful conduct during visits and must be supervised with special care in prison visitation facilities. The incidence of substance abuse in the State's prisons also increased in this period. Drug and alcohol abuse by prisoners is unlawful and a direct threat to legitimate objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons. In response to these concerns, the Michigan Department of Corrections (MDOC or Department) revised its prison visitation policies in 1995, promulgating the regulations here at issue. One aspect of the Department's approach was to limit the visitors a prisoner is eligible to receive, in order to decrease the total number of visitors. Under MDOC's regulations, an inmate may receive visits only from individuals placed on an approved visitor list, except that qualified members of the clergy and attorneys on official business may visit without being listed. Mich. Admin. Code Rule 791.6609(2) (1999); Director's Office Mem. 1995-59 (effective date Aug. 25, 1995). The list may include an unlimited number of members of the prisoner's immediate family and 10 other individuals the prisoner designates, subject to some restrictions. Rule 791.6609(2). Minors under the age of 18 may not be placed on the list unless they are the children, stepchildren, grandchildren, or siblings of the inmate. Rule 791.6609(2)(b); Mich. Comp. Laws Ann. § 791.268a (West Supp. 2003). If an inmate's parental rights *130 have been terminated, the child may not be a visitor. Rule 791.6609(6)(a) (1999). A child authorized to visit must be accompanied by an adult who is an immediate family member of the child or of the inmate or who is the legal guardian of the child. Rule 791.6609(5); Mich. Dept. of Corrections Procedure OP-SLF/STF-05.03.140, p. 9 (effective date Sept. 15, 1999). An inmate may not place a former prisoner on the visitor list unless the former prisoner is a member of the inmate's immediate family and the warden has given prior approval. Rule 791.6609(7). The Department's revised policy also sought to control the widespread use of drugs and alcohol among prisoners. Prisoners who commit multiple substance-abuse violations are not permitted to receive any visitors except attorneys and members of the clergy. Rule 791.6609(11)(d). An inmate subject to this restriction may apply for reinstatement of visitation privileges after two years. Rule 791.6609(12). Reinstatement is within the warden's discretion. Ibid. Respondents are prisoners, their friends, and their family members. They brought this action under Rev. Stat. § 1979, 42 U.S. C. § 1983, alleging that the restrictions upon visitation violate the First, Eighth, and Fourteenth Amendments. It was certified as a class action under Federal Rule of Civil Procedure 23. Inmates who are classified as the highest security risks, as determined by the MDOC, are limited to noncontact visitation. This case does not involve a challenge to the method for making that determination. By contrast to contact visitation, during which inmates are allowed limited physical contact with their visitors in a large visitation room, inmates restricted to noncontact visits must communicate with their visitors through a glass panel, the inmate and the visitor being on opposite sides of a booth. In some facilities the booths are located in or at one side of the same room used for contact visits. The case before us concerns the regulations as they pertain to noncontact visits. *131 The United States District Court for the Eastern District of Michigan agreed with the prisoners that the regulations pertaining to noncontact visits were invalid. Bazzetta v. McGinnis, 148 F. Supp. 2d 813 (2001). The Sixth Circuit affirmed, 286 F.3d 311 (2002), and we granted certiorari, 537 U.S. 1043 (2002). II The Court of Appeals agreed with the District Court that the restrictions on noncontact visits are invalid. This was error. We first consider the contention, accepted by the Court of Appeals, that the regulations infringe a constitutional right of association. We have said that the Constitution protects "certain kinds of highly personal relationships," Roberts v. United States Jaycees, 468 U.S. 609, 618, 619-620 (1984). And outside the prison context, there is some discussion in our cases of a right to maintain certain familial relationships, including association among members of an immediate family and association between grandchildren and grandparents. See Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion); Meyer v. Nebraska, 262 U.S. 390 (1923). This is not an appropriate case for further elaboration of those matters. The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration. See Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977); Shaw v. Murphy, 532 U.S. 223, 229 (2001). And, as our cases have established, freedom of association is among the rights least compatible with incarceration. See Jones, supra, at 125-126; Hewitt v. Helms, 459 U.S. 460 (1983). Some curtailment of that freedom must be expected in the prison context. We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners. We *132 need not attempt to explore or define the asserted right of association at any length or determine the extent to which it survives incarceration because the challenged regulations bear a rational relation to legitimate penological interests. This suffices to sustain the regulation in question. See Turner v. Safley, 482 U.S. 78, 89 (1987). We have taken a similar approach in previous cases, such as Pell v. Procunier, 417 U.S. 817, 822 (1974), which we cited with approval in Turner. In Pell, we found it unnecessary to decide whether an asserted First Amendment right survived incarceration. Prison administrators had reasonably exercised their judgment as to the appropriate means of furthering penological goals, and that was the controlling rationale for our decision. We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. See, e. g., Pell, supra, at 826-827; Helms, supra, at 467; Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Jones, supra, at 126, 128; Turner, supra, at 85, 89; Block v. Rutherford, 468 U.S. 576, 588 (1984); Bell v. Wolfish, 441 U.S. 520, 562 (1979). The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it. See Jones, supra, at 128; O'Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987); Shaw, supra, at 232. Respondents have failed to do so here. In Turner we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a "`valid, rational connection'" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U.S., at 89-91. *133 Turning to the restrictions on visitation by children, we conclude that the regulations bear a rational relation to MDOC's valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury. The regulations promote internal security, perhaps the most legitimate of penological goals, see, e. g., Pell, supra, at 823, by reducing the total number of visitors and by limiting the disruption caused by children in particular. Protecting children from harm is also a legitimate goal, see, e. g., Block, supra, at 586-587. The logical connection between this interest and the regulations is demonstrated by trial testimony that reducing the number of children allows guards to supervise them better to ensure their safety and to minimize the disruptions they cause within the visiting areas. As for the regulation requiring children to be accompanied by a family member or legal guardian, it is reasonable to ensure that the visiting child is accompanied and supervised by those adults charged with protecting the child's best interests. Respondents argue that excluding minor nieces and nephews and children as to whom parental rights have been terminated bears no rational relationship to these penological interests. We reject this contention, and in all events it would not suffice to invalidate the regulations as to all non-contact visits. To reduce the number of child visitors, a line must be drawn, and the categories set out by these regulations are reasonable. Visits are allowed between an inmate and those children closest to him or her—children, grandchildren, and siblings. The prohibition on visitation by children as to whom the inmate no longer has parental rights is simply a recognition by prison administrators of a status determination made in other official proceedings. MDOC's regulation prohibiting visitation by former inmates bears a self-evident connection to the State's interest in maintaining prison security and preventing future crimes. *134 We have recognized that "communication with other felons is a potential spur to criminal behavior." Turner, supra, at 91-92. Finally, the restriction on visitation for inmates with two substance-abuse violations, a bar which may be removed after two years, serves the legitimate goal of deterring the use of drugs and alcohol within the prisons. Drug smuggling and drug use in prison are intractable problems. See, e. g., Bell, supra, at 559; Block, supra, at 586-587; Hudson v. Palmer, 468 U.S. 517, 527 (1984). Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose. In this regard we note that numerous other States have implemented similar restrictions on visitation privileges to control and deter substance-abuse violations. See Brief for State of Colorado et al. as Amici Curiae 4-9. Respondents argue that the regulation bears no rational connection to preventing substance abuse because it has been invoked in certain instances where the infractions were, in respondents' view, minor. Even if we were inclined, though, to substitute our judgment for the conclusions of prison officials concerning the infractions reached by the regulations, the individual cases respondents cite are not sufficient to strike down the regulations as to all noncontact visits. Respondents also contest the 2-year bar and note that reinstatement of visitation is not automatic even at the end of two years. We agree the restriction is severe. And if faced with evidence that MDOC's regulation is treated as a de facto permanent ban on all visitation for certain inmates, we might reach a different conclusion in a challenge to a particular application of the regulation. Those issues are not presented in this case, which challenges the validity of the restriction on noncontact visits in all instances. *135 Having determined that each of the challenged regulations bears a rational relationship to a legitimate penological interest, we consider whether inmates have alternative means of exercising the constitutional right they seek to assert. Turner, 482 U. S., at 90. Were it shown that no alternative means of communication existed, though it would not be conclusive, it would be some evidence that the regulations were unreasonable. That showing, however, cannot be made. Respondents here do have alternative means of associating with those prohibited from visiting. As was the case in Pell, inmates can communicate with those who may not visit by sending messages through those who are allowed to visit. 417 U.S., at 825. Although this option is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone. Respondents protest that letter writing is inadequate for illiterate inmates and for communications with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient. Alternatives to visitation need not be ideal, however; they need only be available. Here, the alternatives are of sufficient utility that they give some support to the regulations, particularly in a context where visitation is limited, not completely withdrawn. Another relevant consideration is the impact that accommodation of the asserted associational right would have on guards, other inmates, the allocation of prison resources, and the safety of visitors. See Turner, supra, at 90; Hudson, supra, at 526 (visitor safety). Accommodating respondents' demands would cause a significant reallocation of the prison system's financial resources and would impair the ability of corrections officers to protect all who are inside a prison's walls. When such consequences are present, we are "particularly deferential" to prison administrators' regulatory judgments. Turner, supra, at 90. *136 Finally, we consider whether the presence of ready alternatives undermines the reasonableness of the regulations. Turner does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid penological goal. 482 U.S., at 90-91. Respondents have not suggested alternatives meeting this high standard for any of the regulations at issue. We disagree with respondents' suggestion that allowing visitation by nieces and nephews or children for whom parental rights have been terminated is an obvious alternative. Increasing the number of child visitors in that way surely would have more than a negligible effect on the goals served by the regulation. As to the limitation on visitation by former inmates, respondents argue the restriction could be time limited, but we defer to MDOC's judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions. Respondents suggest the duration of the restriction for inmates with substance-abuse violations could be shortened or that it could be applied only for the most serious violations, but these alternatives do not go so far toward accommodating the asserted right with so little cost to penological goals that they meet Turner's high standard. These considerations cannot justify the decision of the Court of Appeals to invalidate the regulation as to all noncontact visits. III Respondents also claim that the restriction on visitation for inmates with two substance-abuse violations is a cruel and unusual condition of confinement in violation of the Eighth Amendment. The restriction undoubtedly makes the prisoner's confinement more difficult to bear. But it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment. Much of *137 what we have said already about the withdrawal of privileges that incarceration is expected to bring applies here as well. Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement. Cf. Sandin v. Conner, 515 U.S. 472, 485 (1995). Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur. See, e. g., Estelle v. Gamble, 429 U.S. 97 (1976); Rhodes v. Chapman, 452 U.S. 337 (1981). If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations. An individual claim based on indefinite withdrawal of visitation or denial of procedural safeguards, however, would not support the ruling of the Court of Appeals that the entire regulation is invalid. * * * The judgment of the Court of Appeals is reversed. It is so ordered.

The State of Michigan, by regulation, places certain restrictions on visits with prison inmates. The question before the Court is whether the regulations violate the substantive due process mandate of the Fourteenth Amendment, or the First or Eighth Amendments as applicable to the States through the Fourteenth Amendment. *129 I The population of Michigan's prisons increased in the early 1990's. More inmates brought more visitors, straining the resources available for prison supervision and control. In particular, prison officials found it more difficult to maintain order during visitation and to prevent smuggling or trafficking in drugs. Special problems were encountered with the increase in visits by children, who are at risk of seeing or hearing harmful conduct during visits and must be supervised with special care in prison visitation facilities. The incidence of substance abuse in the State's prisons also increased in this period. Drug and alcohol abuse by prisoners is unlawful and a direct threat to legitimate objectives of the corrections system, including rehabilitation, the maintenance of basic order, and the prevention of violence in the prisons. In response to these concerns, the Michigan Department of Corrections (MDOC or Department) revised its prison visitation policies in 1995, promulgating the regulations here at issue. One aspect of the Department's approach was to limit the visitors a prisoner is eligible to receive, in order to decrease the total number of visitors. Under MDOC's regulations, an inmate may receive visits only from individuals placed on an approved visitor list, except that qualified members of the clergy and attorneys on official business may visit without being listed. Mich. Admin. Code Rule 791.6609(2) (1999); Director's Office Mem. 1995-59 The list may include an unlimited number of members of the prisoner's immediate family and 10 other individuals the prisoner designates, subject to some restrictions. Rule 791.6609(2). Minors under the age of 18 may not be placed on the list unless they are the children, stepchildren, grandchildren, or siblings of the inmate. Rule 791.6609(2)(b);268a (West Supp. 2003). If an inmate's parental rights *130 have been terminated, the child may not be a visitor. Rule 791.6609(6)(a) (1999). A child authorized to visit must be accompanied by an adult who is an immediate family member of the child or of the inmate or who is the legal guardian of the child. Rule 791.6609(5); Mich. Dept. of Corrections Procedure OP-SLF/STF-05.03.140, p. 9 (effective date Sept. 15, 1999). An inmate may not place a former prisoner on the visitor list unless the former prisoner is a member of the inmate's immediate family and the warden has given prior approval. Rule 791.6609(7). The Department's revised policy also sought to control the widespread use of drugs and alcohol among prisoners. Prisoners who commit multiple substance-abuse violations are not permitted to receive any visitors except attorneys and members of the clergy. Rule 791.6609(11)(d). An inmate subject to this restriction may apply for reinstatement of visitation privileges after two years. Rule 791.6609(12). Reinstatement is within the warden's discretion. Respondents are prisoners, their friends, and their family members. They brought this action under Rev. Stat. 1979, 42 U.S. C. 1983, alleging that the restrictions upon visitation violate the First, Eighth, and Fourteenth Amendments. It was certified as a class action under Federal Rule of Civil Procedure 23. Inmates who are classified as the highest security risks, as determined by the MDOC, are limited to noncontact visitation. This case does not involve a challenge to the method for making that determination. By contrast to contact visitation, during which inmates are allowed limited physical contact with their visitors in a large visitation room, inmates restricted to noncontact visits must communicate with their visitors through a glass panel, the inmate and the visitor being on opposite sides of a booth. In some facilities the booths are located in or at one side of the same room used for contact visits. The case before us concerns the regulations as they pertain to noncontact visits. *131 The United States District Court for the Eastern District of Michigan agreed with the prisoners that the regulations pertaining to noncontact visits were invalid. The Sixth Circuit affirmed, and we granted certiorari, II The Court of Appeals agreed with the District Court that the restrictions on noncontact visits are invalid. This was error. We first consider the contention, accepted by the Court of Appeals, that the regulations infringe a constitutional right of association. We have said that the Constitution protects "certain kinds of highly personal relationships," And outside the prison context, there is some discussion in our cases of a right to maintain certain familial relationships, including association among members of an immediate family and association between grandchildren and grandparents. See ; This is not an appropriate case for further elaboration of those matters. The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights inconsistent with proper incarceration. See ; And, as our cases have established, freedom of association is among the rights least compatible with incarceration. See at -126; Some curtailment of that freedom must be expected in the prison context. We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners. We *132 need not attempt to explore or define the asserted right of association at any length or determine the extent to which it survives incarceration because the challenged regulations bear a rational relation to legitimate interests. This suffices to sustain the regulation in question. See We have taken a similar approach in previous cases, such as which we cited with approval in In we found it unnecessary to decide whether an asserted First Amendment right survived incarceration. Prison administrators had reasonably exercised their judgment as to the appropriate means of furthering goals, and that was the controlling rationale for our decision. We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. See, e. g., ; ; (19); ; at 85, ; ; The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it. See ; ; Respondents have failed to do so here. In we held that four factors are relevant in deciding whether a prison regulation affecting a constitutional right that survives incarceration withstands constitutional challenge: whether the regulation has a "`valid, rational connection'" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U.S., at -91. *133 Turning to the restrictions on visitation by children, we conclude that the regulations bear a rational relation to MDOC's valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury. The regulations promote internal security, perhaps the most legitimate of goals, see, e. g., by reducing the total number of visitors and by limiting the disruption caused by children in particular. Protecting children from harm is also a legitimate goal, see, e. g., The logical connection between this interest and the regulations is demonstrated by trial testimony that reducing the number of children allows guards to supervise them better to ensure their safety and to minimize the disruptions they cause within the visiting areas. As for the regulation requiring children to be accompanied by a family member or legal guardian, it is reasonable to ensure that the visiting child is accompanied and supervised by those adults charged with protecting the child's best interests. Respondents argue that excluding minor nieces and nephews and children as to whom parental rights have been terminated bears no rational relationship to these interests. We reject this contention, and in all events it would not suffice to invalidate the regulations as to all non-contact visits. To reduce the number of child visitors, a line must be drawn, and the categories set out by these regulations are reasonable. Visits are allowed between an inmate and those children closest to him or her—children, grandchildren, and siblings. The prohibition on visitation by children as to whom the inmate no longer has parental rights is simply a recognition by prison administrators of a status determination made in other official proceedings. MDOC's regulation prohibiting visitation by former inmates bears a self-evident connection to the State's interest in maintaining prison security and preventing future crimes. *134 We have recognized that "communication with other felons is a potential spur to criminal behavior." Finally, the restriction on visitation for inmates with two substance-abuse violations, a bar which may be removed after two years, serves the legitimate goal of deterring the use of drugs and alcohol within the prisons. Drug smuggling and drug use in prison are intractable problems. See, e. g., ; ; Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose. In this regard we note that numerous other States have implemented similar restrictions on visitation privileges to control and deter substance-abuse violations. See Brief for State of Colorado et al. as Amici Curiae 4-9. Respondents argue that the regulation bears no rational connection to preventing substance abuse because it has been invoked in certain instances where the infractions were, in respondents' view, minor. Even if we were inclined, though, to substitute our judgment for the conclusions of prison officials concerning the infractions reached by the regulations, the individual cases respondents cite are not sufficient to strike down the regulations as to all noncontact visits. Respondents also contest the 2-year bar and note that reinstatement of visitation is not automatic even at the end of two years. We agree the restriction is severe. And if faced with evidence that MDOC's regulation is treated as a de facto permanent ban on all visitation for certain inmates, we might reach a different conclusion in a challenge to a particular application of the regulation. Those issues are not presented in this case, which challenges the validity of the restriction on noncontact visits in all instances. *135 Having determined that each of the challenged regulations bears a rational relationship to a legitimate interest, we consider whether inmates have alternative means of exercising the constitutional right they seek to assert. Were it shown that no alternative means of communication existed, though it would not be conclusive, it would be some evidence that the regulations were unreasonable. That showing, however, cannot be made. Respondents here do have alternative means of associating with those prohibited from visiting. As was the case in inmates can communicate with those who may not visit by sending messages through those who are allowed to visit. Although this option is not available to inmates barred all visitation after two violations, they and other inmates may communicate with persons outside the prison by letter and telephone. Respondents protest that letter writing is inadequate for illiterate inmates and for communications with young children. They say, too, that phone calls are brief and expensive, so that these alternatives are not sufficient. Alternatives to visitation need not be ideal, however; they need only be available. Here, the alternatives are of sufficient utility that they give some support to the regulations, particularly in a context where visitation is limited, not completely withdrawn. Another relevant consideration is the impact that accommodation of the asserted associational right would have on guards, other inmates, the allocation of prison resources, and the safety of visitors. See ; Accommodating respondents' demands would cause a significant reallocation of the prison system's financial resources and would impair the ability of corrections officers to protect all who are inside a prison's walls. When such consequences are present, we are "particularly deferential" to prison administrators' regulatory judgments. *136 Finally, we consider whether the presence of ready alternatives undermines the reasonableness of the regulations. does not impose a least-restrictive-alternative test, but asks instead whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted right while not imposing more than a de minimis cost to the valid goal. 482 U.S., -91. Respondents have not suggested alternatives meeting this high standard for any of the regulations at issue. We disagree with respondents' suggestion that allowing visitation by nieces and nephews or children for whom parental rights have been terminated is an obvious alternative. Increasing the number of child visitors in that way surely would have more than a negligible effect on the goals served by the regulation. As to the limitation on visitation by former inmates, respondents argue the restriction could be time limited, but we defer to MDOC's judgment that a longer restriction better serves its interest in preventing the criminal activity that can result from these interactions. Respondents suggest the duration of the restriction for inmates with substance-abuse violations could be shortened or that it could be applied only for the most serious violations, but these alternatives do not go so far toward accommodating the asserted right with so little cost to goals that they meet 's high standard. These considerations cannot justify the decision of the Court of Appeals to invalidate the regulation as to all noncontact visits. III Respondents also claim that the restriction on visitation for inmates with two substance-abuse violations is a cruel and unusual condition of confinement in violation of the Eighth Amendment. The restriction undoubtedly makes the prisoner's confinement more difficult to bear. But it does not, in the circumstances of this case, fall below the standards mandated by the Eighth Amendment. Much of *137 what we have said already about the withdrawal of privileges that incarceration is expected to bring applies here as well. Michigan, like many other States, uses withdrawal of visitation privileges for a limited period as a regular means of effecting prison discipline. This is not a dramatic departure from accepted standards for conditions of confinement. Cf. Nor does the regulation create inhumane prison conditions, deprive inmates of basic necessities, or fail to protect their health or safety. Nor does it involve the infliction of pain or injury, or deliberate indifference to the risk that it might occur. See, e. g., ; If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations. An individual claim based on indefinite withdrawal of visitation or denial of procedural safeguards, however, would not support the ruling of the Court of Appeals that the entire regulation is invalid. * * * The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Stevens

concurring

Overton v. Bazzetta

2003-06-16

https://www.courtlistener.com/opinion/130150/overton-v-bazzetta/

https://www.courtlistener.com/api/rest/v3/clusters/130150/

2002-073

Our decision today is faithful to the principle that "federal courts must take cognizance of the valid constitutional claims of prison inmates." Turner v. Safley, 482 U.S. 78, 84 (1987). As we explained in Turner: "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution. Hence, for example, prisoners retain the constitutional right to petition the government for the redress of grievances, Johnson v. Avery, 393 U.S. 483 (1969); they *138 are protected against invidious racial discrimination by the Equal Protection Clause of the Fourteenth Amendment, Lee v. Washington, 390 U.S. 333 (1968); and they enjoy the protections of due process, Wolff v. McDonnell, 418 U.S. 539 (1974); Haines v. Kerner, 404 U.S. 519 (1972). Because prisoners retain these rights, `[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.' Procunier v. Martinez, 416 U. S., at 405-406." Ibid. It was in the groundbreaking decision in Morrissey v. Brewer, 408 U.S. 471 (1972), in which we held that parole revocation is a deprivation of liberty within the meaning of the Due Process Clause of the Fourteenth Amendment, that the Court rejected the view once held by some state courts that a prison inmate is a mere slave. See United States ex rel. Miller v. Twomey, 479 F.2d 701, 711-713 (CA7 1973). Under that rejected view, the Eighth Amendment's proscription of cruel and unusual punishment would have marked the outer limit of the prisoner's constitutional rights. It is important to emphasize that nothing in the Court's opinion today signals a resurrection of any such approach in cases of this kind. See ante, at 131. To the contrary, it remains true that the "restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual." 479 F.2d, at 712. JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment. I concur in the judgment of the Court because I would sustain the challenged regulations on different grounds from those offered by the majority. *139 I A The Court is asked to consider "[w]hether prisoners have a right to non-contact prison visitation protected by the First and Fourteenth Amendments." Brief for Petitioners i. In my view, the question presented, as formulated in the order granting certiorari, draws attention to the wrong inquiry. Rather than asking in the abstract whether a certain right "survives" incarceration, ante, at 132, the Court should ask whether a particular prisoner's lawful sentence took away a right enjoyed by free persons. The Court's precedents on the rights of prisoners rest on the unstated (and erroneous) presumption that the Constitution contains an implicit definition of incarceration. This is manifestly not the case, and, in my view, States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivations—provided only that those deprivations are consistent with the Eighth Amendment. Under this view, the Court's precedents on prisoner "rights" bear some reexamination. When faced with a prisoner asserting a deprivation of constitutional rights in this context, the Court has asked first whether the right survives incarceration, Pell v. Procunier, 417 U.S. 817, 822 (1974), and then whether a prison restriction on that right "bear[s] a rational relation to legitimate penological interests." Ante, at 132 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). Pell and its progeny do not purport to impose a substantive limitation on the power of a State to sentence a person convicted of a criminal offense to a deprivation of the right at issue. For example, in Turner, the Court struck down a prison regulation that prohibited inmates from marrying absent permission from the superintendent. 482 U.S., at 89, 94-99. Turner cannot be properly understood, however, as holding that a State may not sentence those convicted to both imprisonment *140 and the denial of a constitutional right to marry.[*] The only provision of the Constitution that speaks to the scope of criminal punishment is the Cruel and Unusual Punishments Clause of the Eighth Amendment, and Turner cited neither that Clause nor the Court's precedents interpreting it. Prisoners challenging their sentences must, absent an unconstitutional procedural defect, rely solely on the Eighth Amendment. The proper inquiry, therefore, is whether a sentence validly deprives the prisoner of a constitutional right enjoyed by ordinary, law-abiding persons. Whether a sentence encompasses the extinction of a constitutional right enjoyed by free persons turns on state law, for it is a State's prerogative to determine how it will punish violations of its law, and this Court awards great deference to such determinations. See, e. g., Payne v. Tennessee, 501 U.S. 808, 824 (1991) ("Under our constitutional system, the primary responsibility for defining crimes against state law [and] fixing punishments for the commission of these crimes . . . rests with the States"); see also Ewing v. California, 538 U.S. 11, 24 (2003) (opinion of O'CONNOR, J.) ("[O]ur tradition of deferring to state legislatures in making and implementing such important [sentencing] policy decisions is longstanding"). Turner is therefore best thought of as implicitly deciding that the marriage restriction was not within the scope of the State's lawfully imposed sentence and that, therefore, the regulation worked a deprivation of a constitutional right without sufficient process. Yet, when the resolution of a federal constitutional issue may be rendered irrelevant by *141 the determination of a predicate state-law question, federal courts should ordinarily abstain from passing on the federal issue. Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941). Here, if the prisoners' lawful sentences encompassed the extinction of any right to intimate association as a matter of state law, all that would remain would be respondents' (meritless, see Part II, infra) Eighth Amendment claim. Petitioners have not asked this Court to abstain under Pullman, and the issue of Pullman abstention was not considered below. As a result, petitioners have, in this case, submitted to the sort of guesswork about the meaning of prison sentences that is the hallmark of the Turner inquiry. Here, furthermore, Pullman abstention seems unnecessary because respondents make no effort to show that the sentences imposed on them did not extinguish the right they now seek to enforce. And for good reason. It is highly doubtful that, while sentencing each respondent to imprisonment, the State of Michigan intended to permit him to have any right of access to visitors. Such access seems entirely inconsistent with Michigan's goal of segregating a criminal from society, see Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (incarceration by design intrudes on the freedom "to be with family and friends and to form the other enduring attachments of normal life"); cf. Olim v. Wakinekona, 461 U.S. 238 (1983) (upholding incarceration several hours of flight away from home). B Though the question whether the State of Michigan intended to confer upon respondents a right to receive visitors is ultimately for the State itself to answer, it must nonetheless be confronted in this case. The Court's Turner analysis strongly suggests that the asserted rights were extinguished by the State of Michigan in incarcerating respondents. Restrictions that are rationally connected to the running of a prison, that are designed to avoid adverse impacts on guards, *142 inmates, or prison resources, that cannot be replaced by "ready alternatives," and that leave inmates with alternative means of accomplishing what the restrictions prohibit, are presumptively included within a sentence of imprisonment. Moreover, the history of incarceration as punishment supports the view that the sentences imposed on respondents terminated any rights of intimate association. From the time prisons began to be used as places where criminals served out their sentences, they were administered much in the way Michigan administers them today. Incarceration in the 18th century in both England and the Colonies was virtually nonexistent as a form of punishment. L. Friedman, Crime and Punishment in American History 48 (1993) (hereinafter Friedman) ("From our standpoint, what is most obviously missing, as a punishment [in the colonial system of corrections], is imprisonment"). Colonial jails had a very limited function of housing debtors and holding prisoners who were awaiting trial. See id., at 49. These institutions were generally characterized by "[d]isorder and neglect." McGowen, The Well-Ordered Prison: England, 1780-1865, in The Oxford History of the Prison: The Practice of Punishment in Western Society 79 (N. Morris & D. Rothman eds. 1995) (hereinafter McGowen). It is not therefore surprising that these jails were quite permeable. A debtor could come and go as he pleased, as long as he remained within a certain area ("`prison bounds'") and returned to jail to sleep. Friedman 49. Moreover, a prisoner with connections could get food and clothing from the outside, id., at 50; see also W. Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-1848, p. 49 (1965) (hereinafter Lewis) ("Many visitors brought the felons such items of contraband as rum, tools, money, and unauthorized messages"). In sum, "[t]here was little evidence of authority," McGowen 79, uniformity, and discipline. Prison as it is known today and its part in the penitentiary system were "basically a nineteenth-century invention." *143 Friedman 48. During that time, the prison became the centerpiece of correctional theory, while whipping, a traditional form of punishment in colonial times, fell into disrepute. The industrialization produced rapid growth, population mobility, and large cities with no well-defined community; as a result, public punishments resulting in stigma and shame wielded little power, as such methods were effective only in small closed communities. Id., at 77. The rise of the penitentiary and confinement as punishment was accompanied by the debate about the Auburn and Pennsylvania systems, both of which imposed isolation from fellow prisoners and the outside. D. Rothman, The Discovery of the Asylum 82 (1971) (hereinafter Rothman) ("As both schemes placed maximum emphasis on preventing the prisoners from communicating with anyone else, the point of dispute was whether convicts should work silently in large groups or individually within solitary cells"); id., at 95. Although there were several justifications for such isolation, they all centered around the belief in the necessity of constructing a special setting for the "deviant" (i. e., criminal), where he would be placed in an environment targeted at rehabilitation, far removed from the corrupting influence of his family and community. Id., at 71; A. Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America 17, 19, 23 (1992); cf. Friedman 77 (describing the changing attitudes toward the origin of crime). Indeed, every feature of the design of a penitentiary—external appearance, internal arrangement, and daily routine—were aimed at achieving that goal. Rothman 79-80; see also id., at 83. Whatever the motives for establishing the penitentiary as the means of combating crime, confinement became standardized in the period between 1780 and 1865. McGowen 79. Prisons were turned into islands of "undeviating regularity," Lewis 122, with little connection to the outside, McGowen 108. Inside the prisons, there were only prisoners and jailers; the difference between the two groups was conspicuously *144 obvious. Id., at 79. Prisoners' lives were carefully regulated, including the contacts with the outside. They were permitted virtually no visitors; even their letters were censored. Any contact that might resemble normal sociability among prisoners or with the outside world became a target for controls and prohibitions. Id., at 108. To the extent that some prisons allowed visitors, it was not for the benefit of those confined, but rather to their detriment. Many prisons offered tours in order to increase revenues. During such tours, visitors could freely stare at prisoners, while prisoners had to obey regulations categorically forbidding them to so much as look at a visitor. Lewis 124. In addition to the general "burden on the convict's spirit" in the form of "the galling knowledge that he was in all his humiliation subject to the frequent gaze of visitors, some of whom might be former friends or neighbors," presence of women visitors made the circumstances "almost unendurable," prompting a prison physician to complain about allowing women in. Ibid. Although by the 1840's some institutions relaxed their rules against correspondence and visitations, the restrictions continued to be severe. For example, Sing Sing allowed convicts to send one letter every six months, provided it was penned by the chaplain and censored by the warden. Each prisoner was permitted to have one visit from his relatives during his sentence, provided it was properly supervised. No reading materials of any kind, except a Bible, were allowed inside. S. Christianson, With Liberty for Some: 500 Years of Imprisonment in America 145 (1998). With such stringent regimentation of prisoners' lives, the prison "had assumed an unmistakable appearance," McGowen 79, one which did not envision any entitlement to visitation. Although any State is free to alter its definition of incarceration to include the retention of constitutional rights previously enjoyed, it appears that Michigan sentenced *145 respondents against the backdrop of this conception of imprisonment. II In my view, for the reasons given in Hudson v. McMillian, 503 U.S. 1, 18-19 (1992) (THOMAS, J., dissenting), regulations pertaining to visitations are not punishment within the meaning of the Eighth Amendment. Consequently, respondents' Eighth Amendment challenge must fail.

Our decision today is faithful to the principle that "federal courts must take cognizance of the valid constitutional claims of prison inmates." As we explained in Turner: "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution. Hence, for example, prisoners retain the constitutional right to petition the government for the redress of grievances, ; they *138 are protected against invidious racial discrimination by the Equal Protection Clause of the Fourteenth Amendment, ; and they enjoy the protections of due process, ; Because prisoners retain these rights, `[w]hen a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.' Procunier v. -406." It was in the groundbreaking decision in in which we held that parole revocation is a deprivation of liberty within the meaning of the Due Process Clause of the Fourteenth Amendment, that the Court rejected the view once held by some state courts that a prison inmate is a mere slave. See United States ex rel. Under that rejected view, the Eighth Amendment's proscription of cruel and unusual punishment would have marked the outer limit of the prisoner's constitutional rights. It is important to emphasize that nothing in the Court's opinion today signals a resurrection of any such approach in cases of this kind. See ante, at 131. To the contrary, it remains true that the "restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual." JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in the judgment. I concur in the judgment of the Court because I would sustain the challenged regulations on different grounds from those offered by the majority. *139 I A The Court is asked to consider "[w]hether prisoners have a right to non-contact prison visitation protected by the First and Fourteenth Amendments." Brief for Petitioners i. In my view, the question presented, as formulated in the order granting certiorari, draws attention to the wrong inquiry. Rather than asking in the abstract whether a certain right "survives" incarceration, ante, at 132, the Court should ask whether a particular prisoner's lawful sentence took away a right enjoyed by free persons. The Court's precedents on the rights of prisoners rest on the unstated (and erroneous) presumption that the Constitution contains an implicit definition of incarceration. This is manifestly not the case, and, in my view, States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivations—provided only that those deprivations are consistent with the Eighth Amendment. Under this view, the Court's precedents on prisoner "rights" bear some reexamination. When faced with a prisoner asserting a deprivation of constitutional rights in this context, the Court has asked first whether the right survives incarceration, and then whether a prison restriction on that right "bear[s] a rational relation to legitimate penological interests." Ante, at 132 ). Pell and its progeny do not purport to impose a substantive limitation on the power of a State to sentence a person convicted of a criminal offense to a deprivation of the right at issue. For example, in Turner, the Court struck down a prison regulation that prohibited inmates from marrying absent permission from the U.S., at 94-99. Turner cannot be properly understood, however, as holding that a State may not sentence those convicted to both imprisonment *140 and the denial of a constitutional right to marry.[*] The only provision of the Constitution that speaks to the scope of criminal punishment is the Cruel and Unusual Punishments Clause of the Eighth Amendment, and Turner cited neither that Clause nor the Court's precedents interpreting it. Prisoners challenging their sentences must, absent an unconstitutional procedural defect, rely solely on the Eighth Amendment. The proper inquiry, therefore, is whether a sentence validly deprives the prisoner of a constitutional right enjoyed by ordinary, law-abiding persons. Whether a sentence encompasses the extinction of a constitutional right enjoyed by free persons turns on state law, for it is a State's prerogative to determine how it will punish violations of its law, and this Court awards great deference to such determinations. See, e. g., ; see also ("[O]ur tradition of deferring to state legislatures in making and implementing such important [sentencing] policy decisions is longstanding"). Turner is therefore best thought of as implicitly deciding that the marriage restriction was not within the scope of the State's lawfully imposed sentence and that, therefore, the regulation worked a deprivation of a constitutional right without sufficient process. Yet, when the resolution of a federal constitutional issue may be rendered irrelevant by *141 the determination of a predicate state-law question, federal courts should ordinarily abstain from passing on the federal issue. Railroad Comm'n of Here, if the prisoners' lawful sentences encompassed the extinction of any right to intimate association as a matter of state law, all that would remain would be respondents' (meritless, see Part II, infra) Eighth Amendment claim. Petitioners have not asked this Court to abstain under Pullman, and the issue of Pullman abstention was not considered below. As a result, petitioners have, in this case, submitted to the sort of guesswork about the meaning of prison sentences that is the hallmark of the Turner inquiry. Here, furthermore, Pullman abstention seems unnecessary because respondents make no effort to show that the sentences imposed on them did not extinguish the right they now seek to enforce. And for good reason. It is highly doubtful that, while sentencing each respondent to imprisonment, the State of Michigan intended to permit him to have any right of access to visitors. Such access seems entirely inconsistent with Michigan's goal of segregating a criminal from society, see ; cf. B Though the question whether the State of Michigan intended to confer upon respondents a right to receive visitors is ultimately for the State itself to answer, it must nonetheless be confronted in this case. The Court's Turner analysis strongly suggests that the asserted rights were extinguished by the State of Michigan in incarcerating respondents. Restrictions that are rationally connected to the running of a prison, that are designed to avoid adverse impacts on guards, *142 inmates, or prison resources, that cannot be replaced by "ready alternatives," and that leave inmates with alternative means of accomplishing what the restrictions prohibit, are presumptively included within a sentence of imprisonment. Moreover, the history of incarceration as punishment supports the view that the sentences imposed on respondents terminated any rights of intimate association. From the time prisons began to be used as places where criminals served out their sentences, they were administered much in the way Michigan administers them today. Incarceration in the 18th century in both England and the Colonies was virtually nonexistent as a form of punishment. L. Friedman, Crime and Punishment in American History 48 (1993) (hereinafter Friedman) ("From our standpoint, what is most obviously missing, as a punishment [in the colonial system of corrections], is imprisonment"). Colonial jails had a very limited function of housing debtors and holding prisoners who were awaiting trial. See These institutions were generally characterized by "[d]isorder and neglect." McGowen, The Well-Ordered Prison: England, 1780-1865, in The Oxford History of the Prison: The Practice of Punishment in Western Society 79 (N. Morris & D. Rothman eds. 1995) (hereinafter McGowen). It is not therefore surprising that these jails were quite permeable. A debtor could come and go as he pleased, as long as he remained within a certain area ("`prison bounds'") and returned to jail to sleep. Friedman 49. Moreover, a prisoner with connections could get food and clothing from the outside, ; see also W. Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-18, p. 49 (1965) (hereinafter Lewis) ("Many visitors brought the felons such items of contraband as rum, tools, money, and unauthorized messages"). In sum, "[t]here was little evidence of authority," McGowen 79, uniformity, and discipline. Prison as it is known today and its part in the penitentiary system were "basically a nineteenth-century invention." *143 Friedman 48. During that time, the prison became the centerpiece of correctional theory, while whipping, a traditional form of punishment in colonial times, fell into disrepute. The industrialization produced rapid growth, population mobility, and large cities with no well-defined community; as a result, public punishments resulting in stigma and shame wielded little power, as such methods were effective only in small closed communities. The rise of the penitentiary and confinement as punishment was accompanied by the debate about the Auburn and Pennsylvania systems, both of which imposed isolation from fellow prisoners and the outside. D. Rothman, The Discovery of the Asylum 82 (1971) (hereinafter Rothman) ("As both schemes placed maximum emphasis on preventing the prisoners from communicating with anyone else, the point of dispute was whether convicts should work silently in large groups or individually within solitary cells"); Although there were several justifications for such isolation, they all centered around the belief in the necessity of constructing a special setting for the "deviant" (i. e., criminal), where he would be placed in an environment targeted at rehabilitation, far removed from the corrupting influence of his family and community. ; A. Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America 17, 19, 23 ; cf. Friedman 77 (describing the changing attitudes toward the origin of crime). Indeed, every feature of the design of a penitentiary—external appearance, internal arrangement, and daily routine—were aimed at achieving that goal. Rothman 79-80; see also Whatever the motives for establishing the penitentiary as the means of combating crime, confinement became standardized in the period between 1780 and 1865. McGowen 79. Prisons were turned into islands of "undeviating regularity," Lewis 122, with little connection to the outside, McGowen 108. Inside the prisons, there were only prisoners and jailers; the difference between the two groups was conspicuously *144 obvious. Prisoners' lives were carefully regulated, including the contacts with the outside. They were permitted virtually no visitors; even their letters were censored. Any contact that might resemble normal sociability among prisoners or with the outside world became a target for controls and prohibitions. To the extent that some prisons allowed visitors, it was not for the benefit of those confined, but rather to their detriment. Many prisons offered tours in order to increase revenues. During such tours, visitors could freely stare at prisoners, while prisoners had to obey regulations categorically forbidding them to so much as look at a visitor. Lewis 1. In addition to the general "burden on the convict's spirit" in the form of "the galling knowledge that he was in all his humiliation subject to the frequent gaze of visitors, some of whom might be former friends or neighbors," presence of women visitors made the circumstances "almost unendurable," prompting a prison physician to complain about allowing women in. Although by the 10's some institutions relaxed their rules against correspondence and visitations, the restrictions continued to be severe. For example, Sing Sing allowed convicts to send one letter every six months, provided it was penned by the chaplain and censored by the warden. Each prisoner was permitted to have one visit from his relatives during his sentence, provided it was properly supervised. No reading materials of any kind, except a Bible, were allowed inside. S. Christianson, With Liberty for Some: 500 Years of Imprisonment in America 145 (1998). With such stringent regimentation of prisoners' lives, the prison "had assumed an unmistakable appearance," McGowen 79, one which did not envision any entitlement to visitation. Although any State is free to alter its definition of incarceration to include the retention of constitutional rights previously enjoyed, it appears that Michigan sentenced *145 respondents against the backdrop of this conception of imprisonment. II In my view, for the reasons given in regulations pertaining to visitations are not punishment within the meaning of the Eighth Amendment. Consequently, respondents' Eighth Amendment challenge must fail.

Justice Ginsburg

majority

Hibbs v. Winn

2004-06-14

https://www.courtlistener.com/opinion/136987/hibbs-v-winn/

https://www.courtlistener.com/api/rest/v3/clusters/136987/

2003-072

Arizona law authorizes income-tax credits for payments to organizations that award educational scholarships and tuition grants to children attending private schools. See Ariz. *93 Rev. Stat. Ann. § 43-1089 (West Supp. 2003). Plaintiffs below, respondents here, brought an action in federal court challenging § 43-1089, and seeking to enjoin its operation, on Establishment Clause grounds. The question presented is whether the Tax Injunction Act (TIA or Act), 28 U.S. C. § 1341, which prohibits a lower federal court from restraining "the assessment, levy or collection of any tax under State law," bars the suit. Plaintiffs-respondents do not contest their own tax liability. Nor do they seek to impede Arizona's receipt of tax revenues. Their suit, we hold, is not the kind § 1341 proscribes. In decisions spanning a near half century, courts in the federal system, including this Court, have entertained challenges to tax credits authorized by state law, without conceiving of § 1341 as a jurisdictional barrier. On this first occasion squarely to confront the issue, we confirm the authority federal courts exercised in those cases. It is hardly ancient history that States, once bent on maintaining racial segregation in public schools, and allocating resources disproportionately to benefit white students to the detriment of black students, fastened on tuition grants and tax credits as a promising means to circumvent Brown v. Board of Education, 347 U.S. 483 (1954). The federal courts, this Court among them, adjudicated the ensuing challenges, instituted under 42 U.S. C. § 1983, and upheld the Constitution's equal protection requirement. See, e. g., Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218, 233 (1964) (faced with unconstitutional closure of county public schools and tuition grants and tax credits for contributions to private segregated schools, District Court could require county to levy taxes to fund nondiscriminatory public schools), rev'g 322 F.2d 332, 343-344 (CA4 1963) (abstention required until state courts determine validity of grants, tax credits, and public-school closing), aff'g Allen v. County School Bd. of Prince Edward Cty., 198 F. Supp. 497, 503 (ED Va. 1961) (county enjoined from paying grants or providing *94 tax credits to support private schools that exclude students based on race while public schools remain closed), and aff'g 207 F. Supp. 349, 355 (ED Va. 1962) (closure of public schools enjoined). See also Moton v. Lambert, 508 F. Supp. 367, 368 (ND Miss. 1981) (challenge to tax exemptions for racially discriminatory private schools may proceed in federal court). In the instant case, petitioner Hibbs, Director of Arizona's Department of Revenue, argues, in effect, that we and other federal courts were wrong in those civil-rights cases. The TIA, petitioner maintains, trumps § 1983; the Act, according to petitioner, bars all lower federal-court interference with state tax systems, even when the challengers are not endeavoring to avoid a tax imposed on them, and no matter whether the State's revenues would be raised or lowered should the plaintiffs prevail. The alleged jurisdictional bar, which petitioner asserts has existed since the TIA's enactment in 1937, was not even imagined by the jurists in the pathmarking civil-rights cases just cited, or by the defendants in those cases, litigants with every interest in defeating federal-court adjudicatory authority. Our prior decisions command no respect, petitioner urges, because they constitute mere "sub silentio holdings." Reply Brief for Petitioner 8. We reject that assessment. We examine in this opinion both the scope of the term "assessment" as used in the TIA, and the question whether the Act was intended to insulate state tax laws from constitutional challenge in lower federal courts even when the suit would have no negative impact on tax collection. Concluding that this suit implicates neither § 1341's conception of assessment nor any of the statute's underlying purposes, we affirm the judgment of the Court of Appeals. I Plaintiffs-respondents, Arizona taxpayers, filed suit in the United States District Court for the District of Arizona, challenging Ariz. Rev. Stat. Ann. § 43-1089 (West Supp. 2003) as incompatible with the Establishment Clause. Section *95 43-1089 provides a credit to taxpayers who contribute money to "school tuition organizations" (STOs). An STO is a nonprofit organization that directs moneys, in the form of scholarship grants, to students enrolled in private elementary or secondary schools. STOs must disburse as scholarship grants at least 90 percent of contributions received, may allow donors to direct scholarships to individual students, may not allow donors to name their own dependents, must designate at least two schools whose students will receive funds, and must not designate schools that "discriminate on the basis of race, color, handicap, familial status or national origin." See §§ 43-1089(D)-(F). STOs are not precluded by Arizona's statute from designating schools that provide religious instruction or that give admissions preference on the basis of religion or religious affiliation. When taxpayers donate money to a qualified STO, § 43-1089 allows them, in calculating their Arizona tax liability, to credit up to $500 of their donation (or $625 for a married couple filing jointly, § 43-1089(A)(2)). In effect, § 43-1089 gives Arizona taxpayers an election. They may direct $500 (or, for joint-return filers, $625) to an STO, or to the Arizona Department of Revenue. As long as donors do not give STOs more than their total tax liability, their $500 or $625 contributions are costless. The Arizona Supreme Court, by a 3-to-2 vote, rejected a facial challenge to § 43-1089 before the statute went into effect. Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999) (en banc). That case took the form of a special discretionary action invoking the court's original jurisdiction. See id., at 277, 972 P.2d, at 610. Kotterman, it is undisputed, has no preclusive effect on the instant as-applied challenge to § 43-1089 brought by different plaintiffs. Respondents' federal-court complaint against the Director of Arizona's Department of Revenue (Director) alleged that § 43-1089 "authorizes the formation of agencies that have as their sole purpose the distribution of State funds to children of a particular religious denomination or to children attending *96 schools of a particular religious denomination." Complaint ¶ 13, App. 10. Respondents sought injunctive and declaratory relief, and an order requiring STOs to pay funds still in their possession "into the state general fund." Id., at 7-8, App. 15. The Director moved to dismiss the action, relying on the TIA, which reads in its entirety: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S. C. § 1341. The Director did not assert that a federal-court order enjoining § 43-1089 would interfere with the State's tax levy or collection efforts. He urged only that a federal injunction would restrain the "assessment" of taxes "under State law." Agreeing with the Director, the District Court held that the TIA required dismissal of the suit. App. to Pet. for Cert. 31. The Court of Appeals for the Ninth Circuit reversed, holding that "a federal action challenging the granting of a state tax credit is not prohibited by the [TIA]." Winn v. Killian, 307 F.3d 1011, 1017 (2002). Far from "adversely affect[ing] the state's ability to raise revenue," the Court of Appeals observed, "the relief requested by [respondents] ... would result in the state's receiving more funds that could be used for the public benefit." Id., at 1017, 1018. We granted certiorari, 539 U.S. 986 (2003), in view of the division of opinion on whether the TIA bars constitutional challenges to state tax credits in federal court. Compare 307 F.3d, at 1017, with ACLU Foundation v. Bridges, 334 F.3d 416, 421-423 (CA5 2003) (TIA bars federal action seeking to have any part of a State's tax system declared unconstitutional). We now affirm the judgment of the Ninth Circuit. II Before reaching the merits of this case, we must address respondents' contention that the Director's petition for certiorari *97 was jurisdictionally untimely under 28 U.S. C. § 2101(c) and our Rules. See Brief in Opposition 8-13. Section 2101(c) instructs that a petition for certiorari must be filed "within ninety days after the entry of ... judgment." This Court's Rule 13.3 elaborates: "The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of the petition for rehearing or, if the petition for rehearing is granted, the subsequent entry of judgment." Respondents assert that the Director's petition missed the Rule's deadlines: More than 90 days elapsed between the date the Court of Appeals first entered judgment and the date the petition was filed, rendering the filing untimely under the first sentence of the Rule; and because no party petitioned for rehearing, the extended periods prescribed by the Rule's second sentence never came into play. This case, however, did not follow the typical course. The Court of Appeals, on its own motion, recalled its mandate and ordered the parties to brief the question whether the case should be reheard en banc. That order, we conclude, suspended the judgment's finality under § 2101(c), just as a timely filed rehearing petition would, or a court's appropriate decision to consider a late-filed rehearing petition. Compare Young v. Harper, 520 U.S. 143, 147, n. 1 (1997) (appeals court agreed to consider a late-filed rehearing petition; timeliness of petition for certiorari measured from date court disposed of rehearing petition), with Missouri v. Jenkins, 495 U.S. 33, 49 (1990) ("The time for applying for certiorari will *98 not be tolled when it appears that the lower court granted rehearing or amended its order solely for the purpose of extending that time."). A timely rehearing petition, a court's appropriate decision to entertain an untimely rehearing petition, and a court's direction, on its own initiative, that the parties address whether rehearing should be ordered share this key characteristic: All three raise the question whether the court will modify the judgment and alter the parties' rights. See id., at 46 ("A timely petition for rehearing ... operates to suspend the finality of the ... court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties" (quoting Department of Banking of Neb. v. Pink, 317 U.S. 264, 266 (1942) (per curiam) (alterations in original))). In other words, "while [a] petition for rehearing is pending," or while the court is considering, on its own initiative, whether rehearing should be ordered, "there is no `judgment' to be reviewed." Jenkins, 495 U.S., at 46. In this light, we hold that the Director's petition for a writ of certiorari was timely. When the Court of Appeals ordered briefing on the rehearing issue, 90 days had not yet passed from the issuance of the panel opinion. Because § 2101(c)'s 90-day limit had not yet expired, the clock could still be reset by an order that left unresolved whether the court would modify its judgment. The court-initiated briefing order had just that effect. Because a genuinely final judgment is critical under the statute, we must treat the date of the court's order denying rehearing en banc as the date judgment was entered. The petition was filed within 90 days of that date and was thus timely under the statute. Were we to read Rule 13 as our sole guide, so that only a rehearing petition filed by a party could reset the statute's 90-day count, we would lose sight of the congressional objective underpinning § 2101(c): An appellate court's final adjudication, *99 Congress indicated, marks the time from which the period allowed for a certiorari petition begins to run. The statute takes priority over the "procedural rules adopted by the Court for the orderly transaction of its business." Schacht v. United States, 398 U.S. 58, 64 (1970). When court-created rules fail to anticipate unusual circumstances that fit securely within a federal statute's compass, the statute controls our decision. See, e. g., Kontrick v. Ryan, 540 U.S. 443, 453 (2004) ("`[I]t is axiomatic' that [court-prescribed procedural rules] `do not create or withdraw federal jurisdiction.'" (quoting Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978))). Because the petition for a writ of certiorari was timely under § 2101(c), we have jurisdiction to decide whether the TIA bars respondents' suit. III To determine whether this litigation falls within the TIA's prohibition, it is appropriate, first, to identify the relief sought. Respondents seek prospective relief only. Specifically, their complaint requests "injunctive relief prohibiting [the Director] from allowing taxpayers to utilize the tax credit authorized by A. R. S. § 43-1089 for payments made to STOs that make tuition grants to children attending religious schools, to children attending schools of only one religious denomination, or to children selected on the basis of their religion." Complaint 7, App. 15. Respondents further ask for a "declaration that A. R. S. § 43-1089, on its face and as applied," violates the Establishment Clause "by affirmatively authorizing STOs to use State income-tax revenues to pay tuition for students attending religious schools or schools that discriminate on the basis of religion." Ibid. Finally, respondents seek "[a]n order that [the Director] inform all [such] STOs that ... all funds in their possession as of the date of this Court's order must be paid into the state general fund." Complaint 7-8, App. 15. Taking account of the prospective nature of the relief requested, does respondents' *100 suit, in 28 U.S. C. § 1341's words, seek to "enjoin, suspend or restrain the assessment, levy or collection of any tax under State law"? The answer to that question turns on the meaning of the term "assessment" as employed in the TIA.[1] As used in the Internal Revenue Code (IRC), the term "assessment" involves a "recording" of the amount the taxpayer owes the Government. 26 U.S. C. § 6203. The "assessment" is "essentially a bookkeeping notation." Laing v. United States, 423 U.S. 161, 170, n. 13 (1976). Section 6201(a) of the IRC authorizes the Secretary of the Treasury "to make . . . assessments of all taxes . . . imposed by this title." An assessment is made "by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary." § 6203.[2] See also M. Saltzman, IRS Practice and Procedure ¶ 10.02, pp. 10-4 to 10-7 (2d ed. 1991) (when Internal Revenue Service (IRS) signs "summary list" of assessment to record amount of tax liability, "the official act of assessment has occurred for purposes of the Code").[3] *101 We do not focus on the word "assessment" in isolation, however. Instead, we follow "the cardinal rule that statutory language must be read in context [since] a phrase gathers meaning from the words around it." General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 596 (2004) (internal quotation marks omitted). In § 1341 and tax law generally, an assessment is closely tied to the collection of a tax, i. e., the assessment is the official recording of liability that triggers levy and collection efforts. The rule against superfluities complements the principle that courts are to interpret the words of a statute in context. See 2A N. Singer, Statutes and Statutory Construction § 46.06, pp. 181-186 (rev. 6th ed. 2000) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant . . . ." (footnotes omitted)). If, as the Director asserts, the term "assessment," by itself, signified "[t]he entire plan or scheme fixed upon for charging or taxing," Brief for Petitioner 12 (quoting Webster's New International Dictionary of the English Language 166 (2d ed. 1934)), the TIA would not need the words "levy" or "collection"; the term "assessment," alone, would do all the necessary work. *102 Earlier this Term, in United States v. Galletti, 541 U.S. 114 (2004), the Government identified "two important consequences" that follow from the IRS' timely tax assessment: "[T]he IRS may employ administrative enforcement methods such as tax liens and levies to collect the outstanding tax," see 26 U.S. C. §§ 6321-6327, 6331-6344; and "the time within which the IRS may collect the tax either administratively or by a `proceeding in court' is extended [from 3 years] to 10 years after the date of assessment," see §§ 6501(a), 6502(a). Brief for United States in United States v. Galletti, O. T. 2003, No. 02-1389, pp. 15-16. The Government thus made clear in briefing Galletti that, under the IRC definition, the tax "assessment" serves as the trigger for levy and collection efforts. The Government did not describe the term as synonymous with the entire plan of taxation. Nor did it disassociate the word "assessment" from the company ("levy or collection") that word keeps.[4] Instead, and in accord with our understanding, the Government related "assessment" to the term's collection-propelling function. IV Congress modeled § 1341 upon earlier federal "statutes of similar import," laws that, in turn, paralleled state provisions proscribing "actions in State courts to enjoin the collection of State and county taxes." S. Rep. No. 1035, 75th Cong., 1st Sess., 1 (1937) (hereinafter S. Rep.). In composing the TIA's text, Congress drew particularly on an 1867 measure, sometimes called the Anti-Injunction Act (AIA), which bars "any court" from entertaining a suit brought "for the purpose of restraining the assessment or collection of any [federal] tax." Act of Mar. 2, 1867, ch. 169, § 10, 14 Stat. *103 475, now codified at 26 U.S. C. § 7421(a). See Jefferson County v. Acker, 527 U.S. 423, 434-435 (1999). While § 7421(a) "apparently has no recorded legislative history," Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974), the Court has recognized, from the AIA's text, that the measure serves twin purposes: It responds to "the Government's need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference"; and it "`require[s] that the legal right to the disputed sums be determined in a suit for refund,'" ibid. (quoting Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7 (1962)).[5] Lower federal courts have similarly comprehended § 7421(a). See, e. g., McGlotten v. Connally, 338 F. Supp. 448, 453-454 (DC 1972) (three-judge court) (§ 7421(a) does not bar action seeking to enjoin income-tax exemptions to fraternal orders that exclude nonwhites from membership, for in such an action, plaintiff "does not contest the amount of his own tax, nor does he seek to limit the amount of tax revenue collectible by the United States" (footnote omitted)); Tax Analysts and Advocates v. Shultz, 376 F. Supp. 889, 892 (DC 1974) (Section 7421(a) does not bar challenge to IRS revenue ruling allowing contributors to political candidate committees to avoid federal gift tax on contributions in excess of $3,000 ceiling; while § 7421(a) "precludes suits to restrain the assessment or collection of taxes," the proscription does not apply when "plaintiffs seek not to restrain the Commissioner from collecting taxes, but rather to require him to collect additional taxes according to the mandates of the law." (emphases in original)).[6] *104 Just as the AIA shields federal tax collections from federal-court injunctions, so the TIA shields state tax collections from federal-court restraints. In both 26 U.S. C. § 7421(a) and 28 U.S. C. § 1341, Congress directed taxpayers to pursue refund suits instead of attempting to restrain collections. Third-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs, as McGlotten, 338 F. Supp., at 453-454, and Tax Analysts, 376 F. Supp., at 892, explained, were outside Congress' purview. The TIA's legislative history is not silent in this regard. The Act was designed expressly to restrict "the jurisdiction of the district courts of the United States over suits relating to the collection of State taxes." S. Rep., p. 1. Specifically, the Senate Report commented that the Act had two closely related, state-revenue-protective objectives: (1) to eliminate disparities between taxpayers who could seek injunctive relief in federal court—usually out-of-state corporations asserting diversity jurisdiction—and taxpayers with recourse only to state courts, which generally required taxpayers to pay first and litigate later; and (2) to stop taxpayers, with the aid of a federal injunction, from withholding large sums, thereby disrupting state government finances. Id., at 1-2; see R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1173 (5th ed. 2003) (citing Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 522-523, and nn. 28-29, 527 (1981)). See also Jefferson County, 527 U. S., at 435 (observing that the TIA was "shaped by state and federal provisions barring anticipatory actions by taxpayers to stop the tax collector from initiating collection proceedings"). In short, in enacting the TIA, *105 Congress trained its attention on taxpayers who sought to avoid paying their tax bill by pursuing a challenge route other than the one specified by the taxing authority. Nowhere does the legislative history announce a sweeping congressional direction to prevent "federal-court interference with all aspects of state tax administration." Brief for Petitioner 20; post, at 123.[7] The understanding of the Act's purposes and legislative history set out above underpins this Court's previous applications of the TIA. In California v. Grace Brethren Church, 457 U.S. 393 (1982), for example, we recognized that the principal purpose of the TIA was to "limit drastically" federal-court interference with "the collection of [state] taxes." Id., at 408-409 (quoting Rosewell, 450 U. S., at 522). True, the Court referred to the disruption of "state tax administration," but it did so specifically in relation to "the collection of revenue." 457 U.S., at 410 (quoting Perez v. Ledesma, 401 U.S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part)). The complainants in Grace Brethren Church were several California churches and religious schools. They sought federal-court relief from an unemployment compensation tax that state law imposed on them. 457 U.S., at 398. Their federal action, which bypassed state remedies, was exactly what the TIA was designed to ward off. The Director and the dissent endeavor to reconstruct Grace Brethren Church as precedent for the proposition that the TIA totally immunizes from lower federal-court review "all aspects of state tax administration, *106 and not just interference with the collection of revenue." Brief for Petitioner 20; see post, at 123-124. The endeavor is unavailing given the issue before the Court in Grace Brethren Church and the context in which the words "state tax administration" appear. The Director invokes several other decisions alleged to keep matters of "state tax administration" entirely free from lower federal-court "interference." Brief for Petitioner 17-21; accord post, at 124-125. Like Grace Brethren Church, all of them fall within § 1341's undisputed compass: All involved plaintiffs who mounted federal litigation to avoid paying state taxes (or to gain a refund of such taxes). Federal-court relief, therefore, would have operated to reduce the flow of state tax revenue. See Arkansas v. Farm Credit Servs. of Central Ark., 520 U.S. 821, 824 (1997) (corporations chartered under federal law claimed exemption from Arkansas sales and income taxation); National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582, 584 (1995) (action seeking to prevent Oklahoma from collecting taxes State imposed on nonresident motor carriers); Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 105-106 (1981) (taxpayers, alleging unequal taxation of real property, sought, inter alia, damages measured by alleged tax overassessments); Rosewell, 450 U.S., at 510 (state taxpayer, alleging her property was inequitably assessed, refused to pay state taxes).[8] Our prior decisions are not fairly portrayed cut loose from their secure, state-revenue-protective moorings. See, e. g., *107 Grace Brethren Church, 457 U.S., at 410 ("If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency." (quoting Ledesma, 401 U.S., at 128, n. 17 (Brennan, J., concurring in part and dissenting in part) (emphases added))); Rosewell, 450 U.S., at 527-528 ("The compelling nature of these considerations [identified by Justice Brennan in Perez] is underscored by the dependency of state budgets on the receipt of local tax revenues.... We may readily appreciate the difficulties encountered by the county should a substantial portion of its rightful tax revenue be tied up in injunction actions.").[9] In sum, this Court has interpreted and applied the TIA only in cases Congress wrote the Act to address, i. e., cases in which state taxpayers seek federal-court orders enabling them to avoid paying state taxes. See supra, at 105-106. We have read harmoniously the § 1341 instruction conditioning the jurisdictional bar on the availability of "a plain, speedy and efficient remedy" in state court. The remedy inspected in our decisions was not one designed for the universe of plaintiffs who sue the State. Rather, it was a remedy tailor-made for taxpayers. See, e. g., Rosewell, 450 U.S., at 528 ("Illinois' legal remedy that provides property *108 owners paying property taxes under protest a refund without interest in two years is a `plain, speedy and efficient remedy' under the [TIA]"); Grace Brethren Church, 457 U.S., at 411 ("[A] state-court remedy is `plain, speedy and efficient' only if it `provides the taxpayer with a "full hearing and judicial determination" at which she may raise any and all constitutional objections to the tax.'" (quoting Rosewell, 450 U.S., at 514)).[10] V In other federal courts as well, § 1341 has been read to restrain state taxpayers from instituting federal actions to contest their liability for state taxes, but not to stop third parties from pursuing constitutional challenges to tax benefits in a federal forum. Relevant to the distinction between taxpayer claims that would reduce state revenues and third-party claims that would enlarge state receipts, Seventh Circuit Judge Easterbrook wrote trenchantly: "Although the district court concluded that § 1341 applies to any federal litigation touching on the subject of state taxes, neither the language nor the legislative history of the statute supports this interpretation. The text of § 1341 does not suggest that federal courts should tread lightly in issuing orders that might allow local governments to raise additional taxes. The legislative history ... shows that § 1341 is designed to ensure that federal courts do not interfere with states' collection of taxes, so long as the taxpayers have an opportunity to present to a court federal defenses to the imposition and collection of the taxes. The legislative history is filled with concern that federal judgments were emptying *109 state coffers and that corporations with access to the diversity jurisdiction could obtain remedies unavailable to resident taxpayers. There was no articulated concern about federal courts' flogging state and local governments to collect additional taxes." Dunn v. Carey, 808 F.2d 555, 558 (1986) (emphasis added). Second Circuit Judge Friendly earlier expressed a similar view of § 1341: "The [TIA's] context and the legislative history ... lead us to conclude that, in speaking of `collection,' Congress was referring to methods similar to assessment and levy, e. g., distress or execution ... that would produce money or other property directly, rather than indirectly through a more general use of coercive power. Congress was thinking of cases where taxpayers were repeatedly using the federal courts to raise questions of state or federal law going to the validity of the particular taxes imposed upon them...." Wells v. Malloy, 510 F.2d 74, 77 (1975) (emphasis added). See also In re Jackson County, 834 F.2d 150, 151-152 (CA8 1987) (observing that "§ 1341 has been held to be inapplicable to efforts to require collection of additional taxes, as opposed to efforts to inhibit the collection of taxes").[11] *110 Further, numerous federal-court decisions—including decisions of this Court reviewing lower federal-court judgments—have reached the merits of third-party constitutional challenges to tax benefits without mentioning the TIA. See, e. g., Byrne v. Public Funds for Public Schools of New Jersey, 442 U.S. 907 (1979), summarily aff'g 590 F.2d 514 (CA3 1979) (state tax deduction for taxpayers with children attending nonpublic schools violates Establishment Clause), aff'g 444 F. Supp. 1228 (NJ 1978); Franchise Tax Board of California v. United Americans for Public Schools, 419 *111 U.S. 890 (1974) (summarily affirming district-court judgment striking down state statute that provided income-tax reductions for taxpayers sending children to nonpublic schools); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (state tax benefits for parents of children attending nonpublic schools violates Establishment Clause), rev'g in relevant part 350 F. Supp. 655 (SDNY 1972) (three-judge court); Grit v. Wolman, 413 U.S. 901 (1973), summarily aff'g Kosydar v. Wolman, 353 F. Supp. 744, 755-756 (SD Ohio 1972) (three-judge court) (state tax credits for expenses relating to children's enrollment in nonpublic schools violate Establishment Clause); Finlator v. Powers, 902 F.2d 1158 (CA4 1990) (state statute exempting Christian Bibles, but not holy books of other religions or other books, from state tax violates Establishment Clause); Luthens v. Bair, 788 F. Supp. 1032 (SD Iowa 1992) (state law authorizing tax benefit for tuition payments and textbook purchases does not violate Establishment Clause); Minnesota Civil Liberties Union v. Roemer, 452 F. Supp. 1316 (Minn. 1978) (three-judge court) (state law allowing parents of public or private school students to claim part of tuition and transportation expenses as tax deduction does not violate Establishment Clause).[12] * * * In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a § 1341 objection that, according to the petitioner in *112 this case, should have caused us to order dismissal of the action for want of jurisdiction. See Mueller v. Allen, 463 U.S. 388 (1983) (state tax deduction for parents who send their children to parochial schools does not violate Establishment Clause); Byrne, 442 U.S. 907; United Americans for Public Schools, 419 U.S. 890; Committee for Public Ed. & Religious Liberty, 413 U.S. 756; Wolman, 413 U.S. 901; Griffin, 377 U.S. 218. Consistent with the decades-long understanding prevailing on this issue, respondents' suit may proceed without any TIA impediment.[13] For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed.

Arizona law authorizes income-tax credits for payments to organizations that award educational scholarships and tuition grants to children attending private schools. See Ariz. *93 Rev. Stat. Ann. 43-1089 Plaintiffs below, respondents here, brought an action in federal court challenging 43-1089, and seeking to enjoin its operation, on Establishment Clause grounds. The question presented is whether the Tax Injunction Act (TIA or Act), 28 U.S. C. 1341, which prohibits a lower federal court from restraining "the assessment, levy or collection of any tax under State law," bars the suit. Plaintiffs-respondents do not contest their own tax liability. Nor do they seek to impede Arizona's receipt of tax revenues. Their suit, we hold, is not the kind 1341 proscribes. In decisions spanning a near half century, courts in the federal system, including this Court, have entertained challenges to tax credits authorized by state law, without conceiving of 1341 as a jurisdictional barrier. On this first occasion squarely to confront the issue, we confirm the authority federal courts exercised in those cases. It is hardly ancient history that States, once bent on maintaining racial segregation in public schools, and allocating resources disproportionately to benefit white students to the detriment of black students, fastened on tuition grants and tax credits as a promising means to circumvent The federal courts, this Court among them, adjudicated the ensuing challenges, instituted under 42 U.S. C. 1983, and upheld the Constitution's equal protection requirement. See, e. g., rev'g aff'g and aff'g See also In the instant case, petitioner Hibbs, Director of Arizona's Department of Revenue, argues, in effect, that we and other federal courts were wrong in those civil-rights cases. The TIA, petitioner maintains, trumps 1983; the Act, according to petitioner, bars all lower federal-court interference with state tax systems, even when the challengers are not endeavoring to avoid a tax imposed on them, and no matter whether the State's revenues would be raised or lowered should the plaintiffs prevail. The alleged jurisdictional bar, which petitioner asserts has existed since the TIA's enactment in 193, was not even imagined by the jurists in the pathmarking civil-rights cases just cited, or by the defendants in those cases, litigants with every interest in defeating federal-court adjudicatory authority. Our prior decisions command no respect, petitioner urges, because they constitute mere "sub silentio holdings." Reply Brief for Petitioner 8. We reject that assessment. We examine in this opinion both the scope of the term "assessment" as used in the TIA, and the question whether the Act was intended to insulate state tax laws from constitutional challenge in lower federal courts even when the suit would have no negative impact on tax collection. Concluding that this suit implicates neither 1341's conception of assessment nor any of the statute's underlying purposes, we affirm the judgment of the Court of Appeals. I Plaintiffs-respondents, Arizona taxpayers, filed suit in the United States District Court for the District of Arizona, challenging Ariz. Rev. Stat. Ann. 43-1089 as incompatible with the Establishment Clause. Section *95 43-1089 provides a credit to taxpayers who contribute money to "school tuition organizations" (STOs). An STO is a nonprofit organization that directs moneys, in the form of scholarship grants, to students enrolled in private elementary or secondary schools. STOs must disburse as scholarship grants at least 90 percent of contributions received, may allow donors to direct scholarships to individual students, may not allow donors to name their own dependents, must designate at least two schools whose students will receive funds, and must not designate schools that "discriminate on the basis of race, color, handicap, familial status or national origin." See 43-1089(D)-(F). STOs are not precluded by Arizona's statute from designating schools that provide religious instruction or that give admissions preference on the basis of religion or religious affiliation. When taxpayers donate money to a qualified STO, 43-1089 allows them, in calculating their Arizona tax liability, to credit up to $500 of their donation (or $625 for a married couple filing jointly, 43-1089(A)(2)). In effect, 43-1089 gives Arizona taxpayers an election. They may direct $500 (or, for joint-return filers, $625) to an STO, or to the Arizona Department of Revenue. As long as donors do not give STOs more than their total tax liability, their $500 or $625 contributions are costless. The Arizona Supreme Court, by a 3-to-2 vote, rejected a facial challenge to 43-1089 before the statute went into effect. That case took the form of a special discretionary action invoking the court's original jurisdiction. See Kotterman, it is undisputed, has no preclusive effect on the instant as-applied challenge to 43-1089 brought by different plaintiffs. Respondents' federal-court complaint against the Director of Arizona's Department of Revenue (Director) alleged that 43-1089 "authorizes the formation of agencies that have as their sole purpose the distribution of State funds to children of a particular religious denomination or to children attending *96 schools of a particular religious denomination." Complaint ¶ 13, App. 10. Respondents sought injunctive and declaratory relief, and an order requiring STOs to pay funds still in their possession "into the state general fund." App. 15. The Director moved to dismiss the action, relying on the TIA, which reads in its entirety: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S. C. 1341. The Director did not assert that a federal-court order enjoining 43-1089 would interfere with the State's tax levy or collection efforts. He urged only that a federal injunction would restrain the "assessment" of taxes "under State law." Agreeing with the Director, the District Court held that the TIA required dismissal of the suit. App. to Pet. for Cert. 31. The Court of Appeals for the Ninth Circuit reversed, holding that "a federal action challenging the granting of a state tax credit is not prohibited by the [TIA]." Far from "adversely affect[ing] the state's ability to raise revenue," the Court of Appeals observed, "the relief requested by [respondents] would result in the state's receiving more funds that could be used for the public benefit." at 1018. We granted certiorari, in view of the division of opinion on whether the TIA bars constitutional challenges to state tax credits in federal court. 30 F.3d, at with ACLU We now affirm the judgment of the Ninth Circuit. II Before reaching the merits of this case, we must address respondents' contention that the Director's petition for certiorari *9 was jurisdictionally untimely under 28 U.S. C. 2101(c) and our Rules. See Brief in Opposition 8-13. Section 2101(c) instructs that a petition for certiorari must be filed "within ninety days after the entry of judgment." This Court's Rule 13.3 elaborates: "The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of the petition for rehearing or, if the petition for rehearing is granted, the subsequent entry of judgment." Respondents assert that the Director's petition missed the Rule's deadlines: More than 90 days elapsed between the date the Court of Appeals first entered judgment and the date the petition was filed, rendering the filing untimely under the first sentence of the Rule; and because no party petitioned for rehearing, the extended periods prescribed by the Rule's second sentence never came into play. This case, however, did not follow the typical course. The Court of Appeals, on its own motion, recalled its mandate and ordered the parties to brief the question whether the case should be reheard en banc. That order, we conclude, suspended the judgment's finality under 2101(c), just as a timely filed rehearing petition would, or a court's appropriate decision to consider a late-filed rehearing petition. with A timely rehearing petition, a court's appropriate decision to entertain an untimely rehearing petition, and a court's direction, on its own initiative, that the parties address whether rehearing should be ordered share this key characteristic: All three raise the question whether the court will modify the judgment and alter the parties' rights. See (alterations in original))). In other words, "while [a] petition for rehearing is pending," or while the court is considering, on its own initiative, whether rehearing should be ordered, "there is no `judgment' to be reviewed." 5 U.S., In this light, we hold that the Director's petition for a writ of certiorari was timely. When the Court of Appeals ordered briefing on the rehearing issue, 90 days had not yet passed from the issuance of the panel opinion. Because 2101(c)'s 90-day limit had not yet expired, the clock could still be reset by an order that left unresolved whether the court would modify its judgment. The court-initiated briefing order had just that effect. Because a genuinely final judgment is critical under the statute, we must treat the date of the court's order denying rehearing en banc as the date judgment was entered. The petition was filed within 90 days of that date and was thus timely under the statute. Were we to read Rule 13 as our sole guide, so that only a rehearing petition filed by a party could reset the statute's 90-day count, we would lose sight of the congressional objective underpinning 2101(c): An appellate court's final adjudication, *99 Congress indicated, marks the time from which the period allowed for a certiorari petition begins to run. The statute takes priority over the "procedural rules adopted by the Court for the orderly transaction of its business." When court-created rules fail to anticipate unusual circumstances that fit securely within a federal statute's compass, the statute controls our decision. See, e. g., Because the petition for a writ of certiorari was timely under 2101(c), we have jurisdiction to decide whether the TIA bars respondents' suit. III To determine whether this litigation falls within the TIA's prohibition, it is appropriate, first, to identify the relief sought. Respondents seek prospective relief only. Specifically, their complaint requests "injunctive relief prohibiting [the Director] from allowing taxpayers to utilize the tax credit authorized by A. R. S. 43-1089 for payments made to STOs that make tuition grants to children attending religious schools, to children attending schools of only one religious denomination, or to children selected on the basis of their religion." Complaint App. 15. Respondents further ask for a "declaration that A. R. S. 43-1089, on its face and as applied," violates the Establishment Clause "by affirmatively authorizing STOs to use State income-tax revenues to pay tuition for students attending religious schools or schools that discriminate on the basis of religion." Finally, respondents seek "[a]n order that [the Director] inform all [such] STOs that all funds in their possession as of the date of this Court's order must be paid into the state general fund." Complaint -8, App. 15. Taking account of the prospective nature of the relief requested, does respondents' *100 suit, in 28 U.S. C. 1341's words, seek to "enjoin, suspend or restrain the assessment, levy or collection of any tax under State law"? The answer to that question turns on the meaning of the term "assessment" as employed in the TIA.[1] As used in the Internal Revenue Code (IRC), the term "assessment" involves a "recording" of the amount the taxpayer owes the Government. 26 U.S. C. 6203. The "assessment" is "essentially a bookkeeping notation." Section 6201(a) of the IRC authorizes the Secretary of the Treasury "to make assessments of all taxes imposed by this title." An assessment is made "by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary." 6203.[2] See also M. Saltzman, IRS Practice and Procedure ¶ 10.02, pp. 10-4 to 10- (2d ed. 1991) (when Internal Revenue Service (IRS) signs "summary list" of assessment to record amount of tax liability, "the official act of assessment has occurred for purposes of the Code").[3] *101 We do not focus on the word "assessment" in isolation, however. Instead, we follow "the cardinal rule that statutory language must be read in context [since] a phrase gathers meaning from the words around it." General Dynamics Land Systems, In 1341 and tax law generally, an assessment is closely tied to the collection of a tax, i. e., the assessment is the official recording of liability that triggers levy and collection efforts. The rule against superfluities complements the principle that courts are to interpret the words of a statute in context. See 2A N. Singer, Statutes and Statutory Construction 46.06, pp. 181-186 (rev. 6th ed. 2000) ("A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant" (footnotes omitted)). If, as the Director asserts, the term "assessment," by itself, signified "[t]he entire plan or scheme fixed upon for charging or taxing," Brief for Petitioner 12 (quoting Webster's New International Dictionary of the English Language 166 (2d ed. 1934)), the TIA would not need the words "levy" or "collection"; the term "assessment," alone, would do all the necessary work. *102 Earlier this Term, in United the Government identified "two important consequences" that follow from the IRS' timely tax assessment: "[T]he IRS may employ administrative enforcement methods such as tax liens and levies to collect the outstanding tax," see 26 U.S. C. 6321-632, 6331-6344; and "the time within which the IRS may collect the tax either administratively or by a `proceeding in court' is extended [from 3 years] to 10 years after the date of assessment," see 6501(a), 6502(a). Brief for United States in United O. T. No. 02-1389, pp. 15-16. The Government thus made clear in briefing Galletti that, under the IRC definition, the tax "assessment" serves as the trigger for levy and collection efforts. The Government did not describe the term as synonymous with the entire plan of taxation. Nor did it disassociate the word "assessment" from the company ("levy or collection") that word keeps.[4] Instead, and in accord with our understanding, the Government related "assessment" to the term's collection-propelling function. IV Congress modeled 1341 upon earlier federal "statutes of similar import," laws that, in turn, paralleled state provisions proscribing "actions in State courts to enjoin the collection of State and county taxes." S. Rep. No. 1035, 5th Cong., 1st Sess., 1 (193) (hereinafter S. Rep.). In composing the TIA's text, Congress drew particularly on an 186 measure, sometimes called the Anti-Injunction Act (AIA), which bars "any court" from entertaining a suit brought "for the purpose of restraining the assessment or collection of any [federal] tax." Act of Mar. 2, 186, ch. 169, 10, 14 Stat. *103 45, now codified at 26 U.S. C. 421(a). See Jefferson While 421(a) "apparently has no recorded legislative history," Bob Jones the Court has recognized, from the AIA's text, that the measure serves twin purposes: It responds to "the Government's need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference"; and it "`require[s] that the legal right to the disputed sums be determined in a suit for refund,'" ).[5] Lower federal courts have similarly comprehended 421(a). See, e. g., -454 (DC 192) ( 421(a) does not bar action seeking to enjoin income-tax exemptions to fraternal orders that exclude nonwhites from membership, for in such an action, plaintiff "does not contest the amount of his own tax, nor does he seek to limit the amount of tax revenue collectible by the United States" (footnote omitted)); Tax and 36 F. Supp. 889, (Section 421(a) does not bar challenge to IRS revenue ruling allowing contributors to political candidate committees to avoid federal gift tax on contributions in excess of $3,000 ceiling; while 421(a) "precludes suits to restrain the assessment or collection of taxes," the proscription does not apply when "plaintiffs seek not to restrain the Commissioner from collecting taxes, but rather to require him to collect additional taxes according to the mandates of the law." (emphases in original)).[6] *104 Just as the AIA shields federal tax collections from federal-court injunctions, so the TIA shields state tax collections from federal-court restraints. In both 26 U.S. C. 421(a) and 28 U.S. C. 1341, Congress directed taxpayers to pursue refund suits instead of attempting to restrain collections. Third-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs, as 338 F. Supp., at -454, and Tax 36 F. Supp., at explained, were outside Congress' purview. The TIA's legislative history is not silent in this regard. The Act was designed expressly to restrict "the jurisdiction of the district courts of the United States over suits relating to the collection of State taxes." S. Rep., p. 1. Specifically, the Senate Report commented that the Act had two closely related, state-revenue-protective objectives: (1) to eliminate disparities between taxpayers who could seek injunctive relief in federal court—usually out-of-state corporations asserting diversity jurisdiction—and taxpayers with recourse only to state courts, which generally required taxpayers to pay first and litigate later; and (2) to stop taxpayers, with the aid of a federal injunction, from withholding large sums, thereby disrupting state government finances. ; see R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 113 ). See also Jefferson 52 U. S., at 435 In short, in enacting the TIA, *105 Congress trained its attention on taxpayers who sought to avoid paying their tax bill by pursuing a challenge route other than the one specified by the taxing authority. Nowhere does the legislative history announce a sweeping congressional direction to prevent "federal-court interference with all aspects of state tax administration." Brief for Petitioner 20; post, at 123.[] The understanding of the Act's purposes and legislative history set out above underpins this Court's previous applications of the TIA. In 45 U.S. 393 for example, we recognized that the principal purpose of the TIA was to "limit drastically" federal-court interference with "the collection of [state] taxes." (quoting ). True, the Court referred to the disruption of "state tax administration," but it did so specifically in relation to "the collection of revenue." 45 U.S., at 410 (quoting 128, n. 1 (191) ). The complainants in Grace Brethren were several California churches and religious schools. They sought federal-court relief from an unemployment compensation tax that state law imposed on 45 U.S., at 398. Their federal action, which bypassed state remedies, was exactly what the TIA was designed to ward off. The Director and the dissent endeavor to reconstruct Grace Brethren as precedent for the proposition that the TIA totally immunizes from lower federal-court review "all aspects of state tax administration, *106 and not just interference with the collection of revenue." Brief for Petitioner 20; see post, at 123-124. The endeavor is unavailing given the issue before the Court in Grace Brethren and the context in which the words "state tax administration" appear. The Director invokes several other decisions alleged to keep matters of "state tax administration" entirely free from lower federal-court "interference." Brief for Petitioner 1-21; accord post, at 124-125. Like Grace Brethren all of them fall within 1341's undisputed compass: All involved plaintiffs who mounted federal litigation to avoid paying state taxes (or to gain a refund of such taxes). Federal-court relief, therefore, would have operated to reduce the flow of state tax revenue. See ; National Private Truck Council, ; Fair Assessment in Real Estate Assn., ;[8] Our prior decisions are not fairly portrayed cut loose from their secure, state-revenue-protective moorings. See, e. g., *10 Grace Brethren 45 U.S., at 410 ("If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency." (quoting Ledesma, n. 1 (emphases added))); 450 U.S., at 52-528 ("The compelling nature of these considerations [identified by Justice Brennan in Perez] is underscored by the dependency of state budgets on the receipt of local tax revenues. We may readily appreciate the difficulties encountered by the county should a substantial portion of its rightful tax revenue be tied up in injunction actions.").[9] In sum, this Court has interpreted and applied the TIA only in cases Congress wrote the Act to address, i. e., cases in which state taxpayers seek federal-court orders enabling them to avoid paying state taxes. See at We have read harmoniously the 1341 instruction conditioning the jurisdictional bar on the availability of "a plain, speedy and efficient remedy" in state court. The remedy inspected in our decisions was not one designed for the universe of plaintiffs who sue the State. Rather, it was a remedy tailor-made for taxpayers. See, e. g., ; Grace Brethren 45 U.S., at 411 ("[A] state-court remedy is `plain, speedy and efficient' only if it `provides the taxpayer with a "full hearing and judicial determination" at which she may raise any and all constitutional objections to the tax.'" (quoting )).[10] V In other federal courts as well, 1341 has been read to restrain state taxpayers from instituting federal actions to contest their liability for state taxes, but not to stop third parties from pursuing constitutional challenges to tax benefits in a federal forum. Relevant to the distinction between taxpayer claims that would reduce state revenues and third-party claims that would enlarge state receipts, Seventh Circuit Judge Easterbrook wrote trenchantly: "Although the district court concluded that 1341 applies to any federal litigation touching on the subject of state taxes, neither the language nor the legislative history of the statute supports this interpretation. The text of 1341 does not suggest that federal courts should tread lightly in issuing orders that might allow local governments to raise additional taxes. The legislative history shows that 1341 is designed to ensure that federal courts do not interfere with states' collection of taxes, so long as the taxpayers have an opportunity to present to a court federal defenses to the imposition and collection of the taxes. The legislative history is filled with concern that federal judgments were emptying *109 state coffers and that corporations with access to the diversity jurisdiction could obtain remedies unavailable to resident taxpayers. There was no articulated concern about federal courts' flogging state and local governments to collect additional taxes." Second Circuit Judge Friendly earlier expressed a similar view of 1341: "The [TIA's] context and the legislative history lead us to conclude that, in speaking of `collection,' Congress was referring to methods similar to assessment and levy, e. g., distress or execution that would produce money or other property directly, rather than indirectly through a more general use of coercive power. Congress was thinking of cases where taxpayers were repeatedly using the federal courts to raise questions of state or federal law going to the validity of the particular taxes imposed upon" 510 F.2d 4, (195) See also In re Jackson (CA8 198) (observing that " 1341 has been held to be inapplicable to efforts to require collection of additional taxes, as opposed to efforts to inhibit the collection of taxes").[11] *110 Further, numerous federal-court decisions—including decisions of this Court reviewing lower federal-court judgments—have reached the merits of third-party constitutional challenges to tax benefits without mentioning the TIA. See, e. g., 442 U.S. 90 (199), summarily aff'g (CA3 199) aff'g ; Franchise Tax Board of ; Committee for Public Ed. & Religious 413 U.S. 56 (193) rev'g in relevant part (SDNY 192) ; (193), summarily aff'g 353 F. Supp. 44, 55-56 (SD Ohio 192) (state tax credits for expenses relating to children's enrollment in nonpublic schools violate Establishment Clause); ; 88 F. Supp. 1032 ; Minnesota Civil Liberties (state law allowing parents of public or private school students to claim part of tuition and transportation expenses as tax deduction does not violate Establishment Clause).[12] * * * In a procession of cases not rationally distinguishable from this one, no Justice or member of the bar of this Court ever raised a 1341 objection that, according to the petitioner in *112 this case, should have caused us to order dismissal of the action for want of jurisdiction. See ; Byrne, 442 U.S. 90; United Americans for Public Schools, ; Committee for Public Ed. & Religious Liberty, 413 U.S. 56; Wolman, ; Griffin, Consistent with the decades-long understanding prevailing on this issue, respondents' suit may proceed without any TIA impediment.[13] For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is Affirmed.

Justice Stevens

concurring

Hibbs v. Winn

2004-06-14

https://www.courtlistener.com/opinion/136987/hibbs-v-winn/

https://www.courtlistener.com/api/rest/v3/clusters/136987/

2003-072

In Part IV of his dissent, JUSTICE KENNEDY observes that "years of unexamined habit by litigants and the courts" do not lessen this Court's obligation correctly to interpret a statute. Post, at 126. It merits emphasis, however, that prolonged congressional silence in response to a settled interpretation of a federal statute provides powerful support for maintaining the status quo. In statutory matters, judicial restraint strongly counsels waiting for Congress to take the initiative in modifying rules on which judges and litigants have relied. See BedRoc Limited, LLC v. United States, 541 U.S. 176, 192 (2004) (STEVENS, J., dissenting); Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 100-105 (1994) (STEVENS, J., dissenting); Commissioner v. Fink, 483 U.S. 89, 101-103 (1987) (STEVENS, J., dissenting); Runyon v. McCrary, 427 U.S. 160, 189-192 *113 (1976) (STEVENS, J., concurring). In a contest between the dictionary and the doctrine of stare decisis, the latter clearly wins. The Court's fine opinion, which I join without reservation, is consistent with these views.

In Part IV of his dissent, JUSTICE KENNEDY observes that "years of unexamined habit by litigants and the courts" do not lessen this Court's obligation correctly to interpret a statute. Post, at 126. It merits emphasis, however, that prolonged congressional silence in response to a settled interpretation of a federal statute provides powerful support for maintaining the status quo. In statutory matters, judicial restraint strongly counsels waiting for Congress to take the initiative in modifying rules on which judges and litigants have relied. See BedRoc Limited, ; Federal Election ; ; 189- *113 In a contest between the dictionary and the doctrine of stare decisis, the latter clearly wins. The Court's fine opinion, which I join without reservation, is consistent with these views.

Justice Kennedy

dissenting

Hibbs v. Winn

2004-06-14

https://www.courtlistener.com/opinion/136987/hibbs-v-winn/

https://www.courtlistener.com/api/rest/v3/clusters/136987/

2003-072

In this case, the Court shows great skepticism for the state courts' ability to vindicate constitutional wrongs. Two points make clear that the Court treats States as diminished and disfavored powers, rather than merely applies statutory text. First, the Court's analysis of the Tax Injunction Act (TIA or Act), 28 U.S.C. § 1341, contrasts with a literal reading of its terms. Second, the Court's assertion that legislative histories support the conclusion that "[t]hird-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs ... were outside Congress' purview" in enacting the TIA and the anti-injunction provision on which the TIA was modeled, ante, at 104, is not borne out by those sources, as previously recognized by the Court. In light of these points, today's holding should probably be attributed to the concern the Court candidly shows animates it. See ante, at 93 (noting it was the federal courts that "upheld the Constitution's equal protection requirement" when States circumvented Brown v. Board of Education, 347 U.S. 483 (1954), by manipulating their tax laws). The concern, it seems, is that state courts are second rate constitutional arbiters, unequal to their federal counterparts. State courts are due more respect than this. Dismissive treatment of state courts is particularly unjustified since the TIA, by express terms, provides a federal safeguard: The Act lifts its bar on federal-court intervention when state courts fail to provide "a plain, speedy, and efficient remedy." § 1341. In view of the TIA's text, the congressional judgment that state courts are qualified constitutional arbiters, and the respect *114 state courts deserve, I disagree with the majority's superseding the balance the Act strikes between federal- and state-court adjudication. I agree with the majority that the petition for certiorari was timely under 28 U.S.C. §2101(c), see ante, at 96-99, and so submit this respectful dissent on the merits of the decision. I Today is the first time the Court has considered whether the TIA bars federal district courts from granting injunctive relief that would prevent States from giving citizens statutorily mandated state tax credits. There are cases, some dating back almost 50 years, which proceeded as if the jurisdictional bar did not apply to tax credit challenges; but some more recent decisions have said the bar is applicable. Compare, e. g., Mueller v. Allen, 463 U.S. 388 (1983); Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Griffin v. School Bd. of Prince Edward Cty., 377 U.S. 218 (1964), with, e. g., ACLU Foundation of La. v. Bridges, 334 F.3d 416 (CA5 2003); In re Gillis, 836 F.2d 1001 (CA6 1988). While unexamined custom favors the first position, the statutory text favors the latter. In these circumstances a careful explanation for the conclusion is necessary; but in the end the scope and purpose of the Act should be understood from its terms alone. The question presented—whether the TIA bars the District Court from granting injunctive relief against the tax credit—requires two inquiries. First, the term assessment, as used in § 1341, must be defined. Second, we must determine if an injunction prohibiting the Director of Arizona's Department of Revenue (Director) from allowing the credit would enjoin, suspend, or restrain an assessment. The word assessment in the TIA is not isolated from its use in another federal statute. The TIA was modeled on the anti-injunction provision of the Internal Revenue Code (Code), 26 U.S.C. § 7421(a). See Jefferson County v. Acker, 527 U.S. 423, 434 (1999). That provision specifies, and has *115 specified since 1867, that federal courts may not restrain or enjoin an "assessment or collection of any [federal] tax." 26 U.S.C. § 7421(a) (first codified by Act of Mar. 2, 1867, ch. 169, § 10, 14 Stat. 475). The meaning of the term assessment in this Code provision is discernible by reference to other Code sections. 26 U.S.C. § 1 et seq. Chapter 63 of Title 26 addresses the subject of assessments and sheds light on the meaning of the term in the Code. Section 6201 first instructs that "[t]he Secretary [of the Internal Revenue Service] is ... required to make the ... assessments of all taxes ... imposed by this title...." 26 U.S.C. §6201(a). Further it provides, "[t]he Secretary shall assess all taxes determined by the taxpayer or by the Secretary ...." § 6201(a)(1). Section 6203 in turn sets forth a method for making an assessment: "The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary." Taken together, the provisions of Title 26 establish that an assessment, as that term is used in § 7421(a), must at the least encompass the recording of a taxpayer's ultimate tax liability. This is what the taxpayer owes the Government. See also Laing v. United States, 423 U.S. 161, 170, n. 13 (1976) ("The `assessment,' essentially a bookkeeping notation, is made when the Secretary or his delegate establishes an account against the taxpayer on the tax rolls"). Whether the Secretary or his delegate (today, the Commissioner) makes the recording on the basis of a taxpayer's self-reported filing form or instead chooses to rely on his own calculation of the taxpayer's liability (e. g., via an audit) is irrelevant. The recording of the liability on the Government's tax rolls is itself an assessment. The TIA was modeled on the anti-injunction provision, see Jefferson County, supra; it incorporates the same terminology employed by the provision; and it employs that terminology for the same purpose. It is sensible, then, to interpret the TIA's terms by reference to the Code's use of the term. *116 Cf. Lorillard v. Pons, 434 U.S. 575, 581 (1978) ("[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute"). The Court of Appeals, which concluded that an assessment was the official estimate of the value of income or property used to calculate a tax or the imposition of a tax on someone, Winn v. Killian, 307 F.3d 1011, 1015 (CA9 2002), placed principal reliance for its interpretation on a dictionary definition. That was not entirely misplaced; but unless the definition is considered in the context of the prior statute, the advantage of that statute's interpretive guidance is lost. Furthermore, the court defined the term in an unusual way. It relied on a dictionary that was unavailable when the TIA was enacted; it relied not on the definition of the term under consideration, "assessment," but on the definition of the term's related verb form, "assess"; and it examined only a portion of that term's definition. In the dictionary used by the Court of Appeals, the verb is defined in two ways not noted by the court. One of the alternative definitions is quite relevant—"(2) to fix or determine the amount of (damages, a tax, a fine, etc.)." Compare ibid. with Random House Dictionary of the English Language 90 (1979). Further: "Had [the panel] looked in a different lay dictionary, [it] would have found a definition contrary to the one it preferred, such as `the entire plan or scheme fixed upon for charging or taxing.' ... Had the panel considered tax treatises and law dictionaries ... it would have found much in accord with this broader definition.... Even the federal income tax code supports a broad reading of `assessment.'" Winn v. Killian, 321 F.3d 911, 912 (CA9 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc). *117 Guided first by the Internal Revenue Code, an assessment under § 1341, at a minimum, is the recording of taxpayers' liability on the State's tax rolls. The TIA, though a federal statute that must be interpreted as a matter of federal law, operates in a state-law context. In this respect, the Act must be interpreted so as to apply evenly to the 50 various state-law regimes and to the various recording schemes States employ. It is therefore irrelevant whether state officials record taxpayer liabilities with their own pen in a specified location, by collecting and maintaining taxpayers' self-reported filing forms, or in some other manner. The recordkeeping that equates to the determination of taxpayer liability on the State's tax rolls is the assessment, whatever the method. The Court seems to agree with this. See ante, at 99-102. The dictionary definition of assessment provides further relevant information. Contemporaneous dictionaries from the time of the TIA's enactment define assessment in expansive terms. They would broaden any understanding of the term, and so the Act's bar. See, e. g., Webster's New International Dictionary 139 (1927) (providing three context relevant definitions for the term assessment: It is the act of apportioning or determining an amount to be paid; a valuation of property for the purpose of taxation; or the entire plan or scheme fixed upon for charging or taxing). See also United States v. Galletti, 541 U.S. 114, 122 (2004) (noting that under the Code the term assessment refers not only to recordings of tax liability but also to "the calculation ... of a tax liability," including self-calculation done by the taxpayer). The Court need not decide the full scope of the term assessment in the TIA, however. For present purposes, a narrow definition of the term suffices. Applying the narrowest definition, the TIA's literal text bars district courts from enjoining, suspending, or restraining a State's recording of taxpayer liability on its tax rolls, whether the recordings are made by *118 self-reported taxpayer filing forms or by a State's calculation of taxpayer liability. The terms "enjoin, suspend, or restrain" require little scrutiny. No doubt, they have discrete purposes in the context of the TIA; but they also have a common meaning. They refer to actions that restrict assessments to varying degrees. It is noteworthy that the term "enjoin" has not just its meaning in the restrictive sense but also has meaning in an affirmative sense. The Black's Law Dictionary current at the TIA's enactment gives as a definition of the term, "to require; command; positively direct." Black's Law Dictionary 663 (3d ed. 1933). That definition may well be implicated here, since an order invalidating a tax credit would seem to command States to collect taxes they otherwise would not collect. The parties, however, proceed on the assumption that enjoin means to bar. It is unobjectionable for the Court to make the assumption too, leaving the broader definition for later consideration. Respondents argue the TIA does not bar the injunction they seek because even after the credit is enjoined, the Director will be able to record and enforce taxpayers' liabilities. See Brief for Respondents 16. In fact, respondents say, with the credit out of the way the Director will be able to record and enforce a higher level of liability and so profit the State. Ibid. ("The amount of tax payable by some taxpayers would increase, but that can hardly be characterized as an injunction or restraint of the assessment process"). The argument, however, ignores an important part of the Act: "under State law." 28 U.S.C. § 1341 ("The district courts shall not enjoin, suspend or restrain the assessment ... of any tax under State law"). The Act not only bars district courts from enjoining, suspending, or restraining a State's recording of taxpayer liabilities altogether; but it also bars them from enjoining, suspending, or restraining a State from recording the taxpayer liability that state law mandates. *119 Arizona Rev. Stat. Ann. §43-1089 (West Supp. 2003) is state law. It is an integral part of the State's tax statute; it is reflected on state tax forms; and the State Supreme Court has held that it is part of the calculus necessary to determine tax liability. See Kotterman v. Killian, 193 Ariz. 273, 279, 285, 972 P.2d 606, 612, 618 (1999). A recording of a taxpayer's liability under state law must be made in accordance with § 43-1089. The same can be said with respect to each and every provision of the State's tax law. To order the Director not to record on the State's tax rolls taxpayer liability that reflects the operation of § 43-1089 (or any other state tax law provision for that matter) would be to bar the Director from recording the correct taxpayer liability. The TIA's language bars this relief and so bars this suit. The Court tries to avoid this conclusion by saying that the recordings that constitute assessments under § 1341 must have a "collection-propelling function," ante, at 102, and that the recordings at issue here do not have such a function. See also ante, at 102, n. 4 ("[T]he dissent would disconnect the word [assessment] from the enforcement process"). That is wrong. A recording of taxpayer liability on the State's tax rolls of course propels collection. In most cases the taxpayer's payment will accompany his filing, and thus will accompany the assessment so that no literal collection of moneys is necessary. As anyone who has paid taxes must know, however, if owed payment were not included with the tax filing, the State's recording of one's liability on the State's rolls would certainly cause subsequent collection efforts, for the filing's recording (i. e., the assessment) would propel collection by establishing the State's legal right to the taxpayer's moneys. II The majority offers prior judicial interpretations of the Code's similarly worded anti-injunction provision to support its contrary conclusions about the statutory text. See ante, at 102-103. That this Court and other federal courts have *120 allowed nontaxpayer suits challenging tax credits to proceed in the face of the anti-injunction provision is not at all controlling. Those cases are quite distinguishable. Had the plaintiffs in those cases been barred from suit, there would have been no available forum at all for their claims. See McGlotten v. Connally, 338 F. Supp. 448, 453-454 (DC 1972) (three-judge court) ("The preferred course of raising [such tax exemption and deduction] objections in a suit for refund is not available. In this situation we cannot read the statute to bar the present suit"). See also Tax Analysts and Advocates v. Shultz, 376 F. Supp. 889, 892 (DC 1974) ("Since plaintiffs are not seeking to restrain the collection of taxes, and since they cannot obtain relief through a refund suit, [26 U.S.C.] § 7421(a) does not bar the injunctive relief they seek"). The Court ratified those decisions only insofar as they relied on this limited rationale as the basis for an exception to the statutory bar on adjudication. See South Carolina v. Regan, 465 U.S. 367, 373 (1984) (holding the anti-injunction provision inapplicable to a State's challenge to the constitutionality of a federal tax exemption provision, § 103(a) of the Code (which exempts from a taxpayer's gross income the interest earned on the obligations of any State), as amended by §310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 596, because "the [anti-injunction provision] was not intended to bar an action where ... Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax"). Even that strict limitation was not strict enough for four Members of the Court, one of whom noted "the broad sweep of the [a]nti-[i]njunction [provision]." 465 U.S., at 382 (Blackmun, J., concurring in judgment). The other three Justices went further still. They would have allowed an exception to the anti-injunction provision's literal bar on nontaxpayer suits challenging tax exemption provisions only if due process rights were at stake. See id., at 394 (O'CONNOR, J., concurring in judgment) ("Bob Jones University's *121 recognition that the complete inaccessibility of judicial review might implicate due process concerns provides absolutely no basis for crafting an exception" to the anti-injunction Act for a plaintiff who has "no due process right to review of its claim in a judicial forum"). In contrast to the anti-injunction provision, the TIA on its own terms ensures an adequate forum for claims it bars. The TIA specially exempts actions that could not be heard in state courts by providing an exception for instances "where a plain, speedy, and efficient remedy may [not] be had in the courts of [the] State." 28 U.S.C. § 1341. The TIA's text thus already incorporates the check that Regan concluded could be read into the anti-injunction provision even though "[t]he [anti-injunction provision]'s language `could scarcely be more explicit' in prohibiting nontaxpayer suits like this one." 465 U.S., at 385 (O'CONNOR, J., concurring in judgment) (quoting Bob Jones Univ. v. Simon, 416 U.S. 725, 736 (1974)). The practical effect is that a literal reading of the TIA provides for federal district courts to stand at the ready where litigants encounter legal or practical obstacles to challenging state tax credits in state courts. And this Court, of course, stands at the ready to review decisions by state courts on these matters. The Court does not discuss this codified exception, yet the clause is crucial. It represents a congressional judgment about the balance that should exist between the respect due to the States (for both their administration of tax schemes and their courts' interpretation of tax laws) and the need for constitutional vindication. To ignore the provision is to ignore that Congress has already balanced these interests. Respondents admit they would be heard in state court. Indeed a quite similar action previously was heard there. See Kotterman v. Killian, 193 Ariz. 273, 972 P.2d 606 (1999). As a result, the TIA's exception (akin to that recognized by Regan) does not apply. To proceed as if it does is to replace Congress' balancing of the noted interests with the Court's. *122 III The Court and respondents further argue that the TIA's policy purposes and relatedly the federal anti-injunction provision's policy purposes (as discerned from legislative histories) justify today's holding. The two Acts, they say, reflect a unitary purpose: "In both ... Congress directed taxpayers to pursue refund suits instead of attempting to restrain [tax] collections." Ante, at 104. See also ante, at 105 (concluding that the Act's underlying purpose is to bar suits by "taxpayers who sought to avoid paying their tax bill"); see also Brief for Respondents 18-20. This purpose, the Court and respondents say, shows that the Act was not intended to foreclose relief in challenges to tax credits. The proposition rests on the premise that the TIA's sole purpose is to prevent district court orders that would decrease the moneys in state fiscs. Because the legislative histories of the Acts are not carefully limited in the manner that this reading suggests, the policy argument against a literal application of the Act's terms fails. Taking the federal anti-injunction provision first, as has been noted before, "[its] history expressly reflects the congressional desire that all injunctive suits against the tax collector be prohibited." Regan, 465 U. S., at 387 (O'CONNOR, J., concurring in judgment). The provision responded to "the grave dangers which accompany intrusion of the injunctive power of the courts into the administration of the revenue." Id., at 388. It "generally precludes judicial resolution of all abstract tax controversies," whether brought by a taxpayer or a nontaxpayer. Id., at 392; see also id., at 387-392 (reviewing the legislative history of the anti-injunction provision, its various amendments, and related enactments). Thus, the provision's object is not just to bar suits that might "interrupt `the process of collecting ... taxes,'" but "[s]imilarly, the language and history evidence a congressional desire to prohibit courts from restraining any aspect of the tax laws' administration." Id., at 399. *123 The majority's reading of the TIA's legislative history is also inconsistent with the interpretation of this same history in the Court's earlier cases. The Court has made clear that the TIA's purpose is not only to protect the fisc but also to protect the State's tax system administration and tax policy implementation. California v. Grace Brethren Church, 457 U.S. 393 (1982), is a prime example. In Grace Brethren Church the Court held that the TIA not only bars actions by individuals to stop tax collectors from collecting moneys (i. e., injunctive suits) but also bars declaratory suits. See id., at 408-410. The Court explained that permitting declaratory suits to proceed would "defea[t] the principal purpose of the Tax Injunction Act: `to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.'" Id., at 408-409 (quoting Rosewell v. LaSalle Nat. Bank, 450 U.S. 503 (1981)). It continued: "`If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.'" Grace Brethren Church, supra, at 410 (quoting with approval Perez v. Ledesma, 401 U.S. 82, 128, n. 17 (1971) (Brennan, J., concurring in part and dissenting in part)). While this, of course, demonstrates that protecting the state fisc from damage is part of the TIA's purpose, it equally shows that actions that would throw the "state tax administration *124 ... into disarray" also implicate the Act and its purpose. The Court's concern with preventing administrative disarray puts in context its explanation that the TIA's principal concern is to limit federal district court interference with the "collection of taxes." The phrase, in this context, refers to the operation of the whole tax collection system and the implementation of entire tax policy, not just a part of it. While an order interfering with a specific collection suit disrupts one of the most essential aspects of a State's tax system, it is not the only way in which federal courts can disrupt the State's tax system: "[T]he legislative history of the Tax Injunction Act demonstrates that Congress worried not so much about the form of relief available in the federal courts, as about divesting the federal courts of jurisdiction to interfere with state tax administration." Grace Brethen Church, supra, at 409, n. 22. The Court's decisions in Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100 (1981), National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U.S. 582 (1995) (NPTC), and Rosewell, supra, make the same point. Though the majority says these cases support its holding because they "involved plaintiffs who mounted federal litigation to avoid paying state taxes," ante, at 106, the language of these cases is too clear to be ignored and is contrary to the Court's holding today. In Fair Assessment, the Court observed that "[t]he [TIA] `has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.' This last consideration was [its] principal motivating force." 454 U.S., at 110 (quoting Rosewell, supra, at 522, in turn quoting Tully v. Griffin, Inc., 429 U.S. 68, 73 (1976) (other citation omitted)). In NPTC, the Court said, "Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the [TIA] in 1937 is one manifestation of this aversion." 515 *125 U. S., at 586 (summing up this aversion, generated also from principles of comity and federalism, as creating a "background presumption that federal law generally will not interfere with administration of state taxes," id., at 588). In Rosewell, the Court described the Act's language as "broad" and "prophylactic." 450 U.S., at 524 (majority opinion of Brennan, J.). See also ibid. (the TIA was "passed to limit federal-court interference in state tax matters"). The Act is designed to respect not only the administration of state tax systems but also state-court authority to say what state law means. "[F]ederal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Grace Brethren Church, supra, at 410 (internal quotation marks omitted). See also Rosewell, supra, at 527. This too establishes that the TIA's purpose is not solely to ensure that the State's fisc is not decreased. There would be only a diminished interest in allowing state courts to say what the State's tax statutes mean if the Act protected just the state fisc. The TIA protects the responsibility of the States and their courts to administer their own tax systems and to be accountable to the citizens of the State for their policies and decisions. The majority objects that "there is no disagreement to the meaning of" state law in this case, ante, at 106, n. 5. As an initial matter, it is not clear that this is a fair conclusion. The litigation in large part turns on what state law requires and whether the product of those requirements violates the Constitution. More to the point, however, even if there were no controversy about the statutory framework the Arizona tax provision creates, the majority's ruling has implications far beyond this case and will most certainly result in federal courts in other States and in other cases being required to interpret state tax law in order to complete their review of challenges to state tax statutes. Our heretofore consistent interpretation of the Act's legislative history to prohibit interference with state tax systems *126 and their administration accords with the direct, broad, and unqualified language of the statute. The Act bars all orders that enjoin, suspend, or restrain the assessment of any tax under state law. In effecting congressional intent we should give full force to simple and broad proscriptions in the statutory language. Because the TIA's language and purpose are comprehensive, arguments based on congressional silence on the question whether the TIA applies to actions that increase moneys a state tax system collects are of no moment. Contra, Winn, 307 F. 3d, at 1017-1018 (relying on Dunn v. Carey, 808 F.2d 555, 558 (CA7 1986)); see also ante, at 108-109 (relying on Dunn). Whatever weight one gives to legislative histories, silence in the legislative record is irrelevant when a plain congressional declaration exists on a matter. "[W]hen terms are unambiguous we may not speculate on probabilities of intention." Insurance Co. v. Ritchie, 5 Wall. 541, 545 (1867). Here, Congress has said district courts are barred from disrupting the State's tax operations. It is immaterial whether the State's collection is raised or lowered. A court order will thwart and replace the State's chosen tax policy if it causes either result. No authority supports the proposition that a State lacks an interest in reducing its citizens' tax burden. It is a troubling proposition for this Court to proceed on the assumption that the State's interest in limiting the tax burden on its citizens to that for which its law provides is a secondary policy, deserving of little respect from us. IV The final basis on which both the majority and respondents rest is that years of unexamined habit by litigants and the courts alike have resulted in federal courts' entertaining challenges to state tax credits. See ante, at 110-111 (citing representative cases). While we should not reverse the course of our unexamined practice lightly, our obligation is to give a correct interpretation of the statute. We are not *127 obliged to maintain the status quo when the status quo is unfounded. The exercise of federal jurisdiction does not and cannot establish jurisdiction. See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38 (1952). "[T]his Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio." Id., at 38. In this respect, the present case is no different than Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88 (1994). The case presented the question whether we had jurisdiction to consider a certiorari petition filed by the Federal Election Commission (FEC), and not by the Solicitor General on behalf of the FEC. The Court held that it lacked jurisdiction. See id., at 99. Though that answer seemed to contradict the Court's prior practices, the Court said: "Nor are we impressed by the FEC's argument that it has represented itself before this Court on several occasions in the past without any question having been raised about its authority to do so .... The jurisdiction of this Court was challenged in none of these actions, and therefore the question is an open one before us." Id., at 97. See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 63, n. 4 (1989) ("`[T]his Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.' Hagans v. Lavine, 415 U.S. 528, 535, n. 5 (1974)" (alteration in original)). These cases make clear that our failure to consider a question hardly equates to a thing's being decided. Contra, ante, at 112-113 (STEVENS, J., concurring) (referring to prior silences of the courts with respect to the TIA as stare decisis and settled interpretation). As a consequence, I would follow the statutory language. * * * *128 After today's decision, "[n]ontaxpaying associations of taxpayers, and most other nontaxpayers, will now be allowed to sidestep Congress' policy against [federal] judicial resolution of abstract [state] tax controversies." Regan, 465 U. S., at 394 (O'CONNOR, J., concurring in judgment). This unfortunate result deprives state courts of the first opportunity to hear such cases and to grant the relief the Constitution requires. For the foregoing reasons, with respect, I dissent.

In this case, the Court shows great skepticism for the state courts' ability to vindicate constitutional wrongs. Two points make clear that the Court treats States as diminished and disfavored powers, rather than merely applies statutory text. First, the Court's analysis of the Tax Injunction Act (TIA or Act), contrasts with a literal reading of its terms. Second, the Court's assertion that legislative histories support the conclusion that "[t]hird-party suits not seeking to stop the collection (or contest the validity) of a tax imposed on plaintiffs were outside Congress' purview" in enacting the TIA and the anti-injunction provision on which the TIA was modeled, ante, at 104, is not borne out by those sources, as previously recognized by the Court. In light of these points, today's holding should probably be attributed to the concern the Court candidly shows animates it. See ante, at 93 by manipulating their tax laws). The concern, it seems, is that state courts are second rate constitutional arbiters, unequal to their federal counterparts. State courts are due more respect than this. Dismissive treatment of state courts is particularly unjustified since the TIA, by express terms, provides a federal safeguard: The Act lifts its bar on federal-court intervention when state courts fail to provide "a plain, speedy, and efficient remedy." 1341. In view of the TIA's text, the congressional judgment that state courts are qualified constitutional arbiters, and the respect *114 state courts deserve, I disagree with the majority's superseding the balance the Act strikes between federal- and state-court adjudication. I agree with the majority that the petition for certiorari was timely under 28 U.S.C. 2101(c), see ante, at 96-99, and so submit this respectful dissent on the merits of the decision. I Today is the first time the Court has considered whether the TIA bars federal district courts from granting injunctive relief that would prevent States from giving citizens statutorily mandated state tax credits. There are cases, some dating back almost 50 years, which proceeded as if the jurisdictional bar did not apply to tax credit challenges; but some more recent decisions have said the bar is applicable. Compare, e. g., ; Committee for Public Ed. & Religious ; with, e. g., ACLU Foundation of ; In re Gillis, While unexamined custom favors the first position, the statutory text favors the latter. In these circumstances a careful explanation for the conclusion is necessary; but in the end the scope and purpose of the Act should be understood from its terms alone. The question presented—whether the TIA bars the District Court from granting injunctive relief against the tax credit—requires two inquiries. First, the term assessment, as used in 1341, must be defined. Second, we must determine if an injunction prohibiting the Director of Arizona's Department of Revenue (Director) from allowing the credit would enjoin, suspend, or restrain an assessment. The word assessment in the TIA is not isolated from its use in another federal statute. The TIA was modeled on the anti-injunction provision of the Internal Revenue Code (Code), 26 U.S.C. 7421(a). See Jefferson That provision specifies, and has *115 specified since 1867, that federal courts may not restrain or enjoin an "assessment or collection of any [federal] tax." 26 U.S.C. 7421(a) (first codified by Act of Mar. 2, 1867, ch. 169, 10, ). The meaning of the term assessment in this Code provision is discernible by reference to other Code sections. 26 U.S.C. 1 et seq. Chapter 63 of Title 26 addresses the subject of assessments and sheds light on the meaning of the term in the Code. Section 6201 first instructs that "[t]he Secretary [of the Internal Revenue Service] is required to make the assessments of all taxes imposed by this title." 26 U.S.C. 6201(a). Further it provides, "[t]he Secretary shall assess all taxes determined by the taxpayer or by the Secretary" 6201(a)(1). Section 6203 in turn sets forth a method for making an assessment: "The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary." Taken together, the provisions of Title 26 establish that an assessment, as that term is used in 7421(a), must at the least encompass the recording of a taxpayer's ultimate tax liability. This is what the taxpayer owes the Government. See also Whether the Secretary or his delegate (today, the Commissioner) makes the recording on the basis of a taxpayer's self-reported filing form or instead chooses to rely on his own calculation of the taxpayer's liability (e. g., via an audit) is irrelevant. The recording of the liability on the Government's tax rolls is itself an assessment. The TIA was modeled on the anti-injunction provision, see Jefferson it incorporates the same terminology employed by the provision; and it employs that terminology for the same purpose. It is sensible, then, to interpret the TIA's terms by reference to the Code's use of the term. *116 Cf. U.S. 575, The Court of Appeals, which concluded that an assessment was the official estimate of the value of income or property used to calculate a tax or the imposition of a tax on someone, placed principal reliance for its interpretation on a dictionary definition. That was not entirely misplaced; but unless the definition is considered in the context of the prior statute, the advantage of that statute's interpretive guidance is lost. Furthermore, the court defined the term in an unusual way. It relied on a dictionary that was unavailable when the TIA was enacted; it relied not on the definition of the term under consideration, "assessment," but on the definition of the term's related verb form, "assess"; and it examined only a portion of that term's definition. In the dictionary used by the Court of Appeals, the verb is defined in two ways not noted by the court. One of the alternative definitions is quite relevant—"(2) to fix or determine the amount of (damages, a tax, a fine, etc.)." Compare with Random House Dictionary of the English Language 90 (1979). Further: "Had [the panel] looked in a different lay dictionary, [it] would have found a definition contrary to the one it preferred, such as `the entire plan or scheme fixed upon for charging or taxing.' Had the panel considered tax treatises and law dictionaries it would have found much in accord with this broader definition. Even the federal income tax code supports a broad reading of `assessment.'" *117 Guided first by the Internal Revenue Code, an assessment under 1341, at a minimum, is the recording of taxpayers' liability on the State's tax rolls. The TIA, though a federal statute that must be interpreted as a matter of federal law, operates in a state-law context. In this respect, the Act must be interpreted so as to apply evenly to the 50 various state-law regimes and to the various recording schemes States employ. It is therefore irrelevant whether state officials record taxpayer liabilities with their own pen in a specified location, by collecting and maintaining taxpayers' self-reported filing forms, or in some other manner. The recordkeeping that equates to the determination of taxpayer liability on the State's tax rolls is the assessment, whatever the method. The Court seems to agree with this. See ante, -102. The dictionary definition of assessment provides further relevant information. Contemporaneous dictionaries from the time of the TIA's enactment define assessment in expansive terms. They would broaden any understanding of the term, and so the Act's bar. See, e. g., Webster's New International Dictionary 139 (1927) (providing three context relevant definitions for the term assessment: It is the act of apportioning or determining an amount to be paid; a valuation of property for the purpose of taxation; or the entire plan or scheme fixed upon for charging or taxing). See also United The Court need not decide the full scope of the term assessment in the TIA, however. For present purposes, a narrow definition of the term suffices. Applying the narrowest definition, the TIA's literal text bars district courts from enjoining, suspending, or restraining a State's recording of taxpayer liability on its tax rolls, whether the recordings are made by *118 self-reported taxpayer filing forms or by a State's calculation of taxpayer liability. The terms "enjoin, suspend, or restrain" require little scrutiny. No doubt, they have discrete purposes in the context of the TIA; but they also have a common meaning. They refer to actions that restrict assessments to varying degrees. It is noteworthy that the term "enjoin" has not just its meaning in the restrictive sense but also has meaning in an affirmative sense. The Black's Law Dictionary current at the TIA's enactment gives as a definition of the term, "to require; command; positively direct." Black's Law Dictionary 663 (3d ed. 1933). That definition may well be implicated here, since an order invalidating a tax credit would seem to command States to collect taxes they otherwise would not collect. The parties, however, proceed on the assumption that enjoin means to bar. It is unobjectionable for the Court to make the assumption too, leaving the broader definition for later consideration. Respondents argue the TIA does not bar the injunction they seek because even after the credit is enjoined, the Director will be able to record and enforce taxpayers' liabilities. See Brief for Respondents 16. In fact, respondents say, with the credit out of the way the Director will be able to record and enforce a higher level of liability and so profit the State. The argument, however, ignores an important part of the Act: "under State law." The Act not only bars district courts from enjoining, suspending, or restraining a State's recording of taxpayer liabilities altogether; but it also bars them from enjoining, suspending, or restraining a State from recording the taxpayer liability that state law mandates. *119 Arizona Rev. Stat. Ann. 43-1089 is state law. It is an integral part of the State's tax statute; it is reflected on state tax forms; and the State Supreme Court has held that it is part of the calculus necessary to determine tax liability. See A recording of a taxpayer's liability under state law must be made in accordance with 43-1089. The same can be said with respect to each and every provision of the State's tax law. To order the Director not to record on the State's tax rolls taxpayer liability that reflects the operation of 43-1089 (or any other state tax law provision for that matter) would be to bar the Director from recording the correct taxpayer liability. The TIA's language bars this relief and so bars this suit. The Court tries to avoid this conclusion by saying that the recordings that constitute assessments under 1341 must have a "collection-propelling function," ante, at 102, and that the recordings at issue here do not have such a function. See also ante, at 102, n. 4 ("[T]he dissent would disconnect the word [assessment] from the enforcement process"). That is wrong. A recording of taxpayer liability on the State's tax rolls of course propels collection. In most cases the taxpayer's payment will accompany his filing, and thus will accompany the assessment so that no literal collection of moneys is necessary. As anyone who has paid taxes must know, however, if owed payment were not included with the tax filing, the State's recording of one's liability on the State's rolls would certainly cause subsequent collection efforts, for the filing's recording (i. e., the assessment) would propel collection by establishing the State's legal right to the taxpayer's moneys. II The majority offers prior judicial interpretations of the Code's similarly worded anti-injunction provision to support its contrary conclusions about the statutory text. See ante, at 102-103. That this Court and other federal courts have *120 allowed nontaxpayer suits challenging tax credits to proceed in the face of the anti-injunction provision is not at all controlling. Those cases are quite distinguishable. Had the plaintiffs in those cases been barred from suit, there would have been no available forum at all for their claims. See ("The preferred course of raising [such tax exemption and deduction] objections in a suit for refund is not available. In this situation we cannot read the statute to bar the present suit"). See also Tax Analysts and ("Since plaintiffs are not seeking to restrain the collection of taxes, and since they cannot obtain relief through a refund suit, [26 U.S.C.] 7421(a) does not bar the injunctive relief they seek"). The Court ratified those decisions only insofar as they relied on this limited rationale as the basis for an exception to the statutory bar on adjudication. See South (holding the anti-injunction provision inapplicable to a State's challenge to the constitutionality of a federal tax exemption provision, 103(a) of the Code (which exempts from a taxpayer's gross income the interest earned on the obligations of any State), as amended by 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, because "the [anti-injunction provision] was not intended to bar an action where Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax"). Even that strict limitation was not strict enough for four Members of the Court, one of whom noted "the broad sweep of the [a]nti-[i]njunction [provision]." The other three Justices went further still. They would have allowed an exception to the anti-injunction provision's literal bar on nontaxpayer suits challenging tax exemption provisions only if due process rights were at stake. See ("Bob Jones University's *121 recognition that the complete inaccessibility of judicial review might implicate due process concerns provides absolutely no basis for crafting an exception" to the anti-injunction Act for a plaintiff who has "no due process right to review of its claim in a judicial forum"). In contrast to the anti-injunction provision, the TIA on its own terms ensures an adequate forum for claims it bars. The TIA specially exempts actions that could not be heard in state courts by providing an exception for instances "where a plain, speedy, and efficient remedy may [not] be had in the courts of [the] State." The TIA's text thus already incorporates the check that concluded could be read into the anti-injunction provision even though "[t]he [anti-injunction provision]'s language `could scarcely be more explicit' in prohibiting nontaxpayer suits like this one." ). The practical effect is that a literal reading of the TIA provides for federal district courts to stand at the ready where litigants encounter legal or practical obstacles to challenging state tax credits in state courts. And this Court, of course, stands at the ready to review decisions by state courts on these matters. The Court does not discuss this codified exception, yet the clause is crucial. It represents a congressional judgment about the balance that should exist between the respect due to the States (for both their administration of tax schemes and their courts' interpretation of tax laws) and the need for constitutional vindication. To ignore the provision is to ignore that Congress has already balanced these interests. Respondents admit they would be heard in state court. Indeed a quite similar action previously was heard there. See As a result, the TIA's exception (akin to that recognized by ) does not apply. To proceed as if it does is to replace Congress' balancing of the noted interests with the Court's. * III The Court and respondents further argue that the TIA's policy purposes and relatedly the federal anti-injunction provision's policy purposes (as discerned from legislative histories) justify today's holding. The two Acts, they say, reflect a unitary purpose: "In both Congress directed taxpayers to pursue refund suits instead of attempting to restrain [tax] collections." Ante, at 104. See also ante, at 105 (concluding that the Act's underlying purpose is to bar suits by "taxpayers who sought to avoid paying their tax bill"); see also Brief for Respondents 18-20. This purpose, the Court and respondents say, shows that the Act was not intended to foreclose relief in challenges to tax credits. The proposition rests on the premise that the TIA's sole purpose is to prevent district court orders that would decrease the moneys in state fiscs. Because the legislative histories of the Acts are not carefully limited in the manner that this reading suggests, the policy argument against a literal application of the Act's terms fails. Taking the federal anti-injunction provision first, as has been noted before, "[its] history expressly reflects the congressional desire that all injunctive suits against the tax collector be prohibited." The provision responded to "the grave dangers which accompany intrusion of the injunctive power of the courts into the administration of the revenue." It "generally precludes judicial resolution of all abstract tax controversies," whether brought by a taxpayer or a nontaxpayer. ; see also Thus, the provision's object is not just to bar suits that might "interrupt `the process of collecting taxes,'" but "[s]imilarly, the language and history evidence a congressional desire to prohibit courts from restraining any aspect of the tax laws' administration." *123 The majority's reading of the TIA's legislative history is also inconsistent with the interpretation of this same history in the Court's earlier cases. The Court has made clear that the TIA's purpose is not only to protect the fisc but also to protect the State's tax system administration and tax policy implementation. is a prime example. In Grace Brethren the Court held that the TIA not only bars actions by individuals to stop tax collectors from collecting moneys (i. e., injunctive suits) but also bars declaratory suits. See The Court explained that permitting declaratory suits to proceed would "defea[t] the principal purpose of the Tax Injunction Act: `to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection of taxes.'" ). It continued: "`If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts.'" Grace Brethren ). While this, of course, demonstrates that protecting the state fisc from damage is part of the TIA's purpose, it equally shows that actions that would throw the "state tax administration *124 into disarray" also implicate the Act and its purpose. The Court's concern with preventing administrative disarray puts in context its explanation that the TIA's principal concern is to limit federal district court interference with the "collection of taxes." The phrase, in this context, refers to the operation of the whole tax collection system and the implementation of entire tax policy, not just a part of it. While an order interfering with a specific collection suit disrupts one of the most essential aspects of a State's tax system, it is not the only way in which federal courts can disrupt the State's tax system: "[T]he legislative history of the Tax Injunction Act demonstrates that Congress worried not so much about the form of relief available in the federal courts, as about divesting the federal courts of jurisdiction to interfere with state tax administration." Grace Brethen The Court's decisions in Fair Assessment in Real Estate Assn., National Private Truck Council, and make the same point. Though the majority says these cases support its holding because they "involved plaintiffs who mounted federal litigation to avoid paying state taxes," ante, at 106, the language of these cases is too clear to be ignored and is contrary to the Court's holding today. In Fair Assessment, the Court observed that "[t]he [TIA] `has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations.' This last consideration was [its] principal motivating force." ). In NPTC, the Court said, "Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the [TIA] in 1937 is one manifestation of this aversion." 515 * (summing up this aversion, generated also from principles of comity and federalism, as creating a "background presumption that federal law generally will not interfere with administration of state taxes," ). In the Court described the Act's language as "broad" and "prophylactic." See also The Act is designed to respect not only the administration of state tax systems but also state-court authority to say what state law means. "[F]ederal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Grace Brethren See also This too establishes that the TIA's purpose is not solely to ensure that the State's fisc is not decreased. There would be only a diminished interest in allowing state courts to say what the State's tax statutes mean if the Act protected just the state fisc. The TIA protects the responsibility of the States and their courts to administer their own tax systems and to be accountable to the citizens of the State for their policies and decisions. The majority objects that "there is no disagreement to the meaning of" state law in this case, ante, at 106, n. 5. As an initial matter, it is not clear that this is a fair conclusion. The litigation in large part turns on what state law requires and whether the product of those requirements violates the Constitution. More to the point, however, even if there were no controversy about the statutory framework the Arizona tax provision creates, the majority's ruling has implications far beyond this case and will most certainly result in federal courts in other States and in other cases being required to interpret state tax law in order to complete their review of challenges to state tax statutes. Our heretofore consistent interpretation of the Act's legislative history to prohibit interference with state tax systems *126 and their administration accords with the direct, broad, and unqualified language of the statute. The Act bars all orders that enjoin, suspend, or restrain the assessment of any tax under state law. In effecting congressional intent we should give full force to simple and broad proscriptions in the statutory language. Because the TIA's language and purpose are comprehensive, arguments based on congressional silence on the question whether the TIA applies to actions that increase moneys a state tax system collects are of no moment. Contra, -1018 ); see also ante, at 108-109 (relying on Dunn). Whatever weight one gives to legislative histories, silence in the legislative record is irrelevant when a plain congressional declaration exists on a matter. "[W]hen terms are unambiguous we may not speculate on probabilities of intention." Insurance Here, Congress has said district courts are barred from disrupting the State's tax operations. It is immaterial whether the State's collection is raised or lowered. A court order will thwart and replace the State's chosen tax policy if it causes either result. No authority supports the proposition that a State lacks an interest in reducing its citizens' tax burden. It is a troubling proposition for this Court to proceed on the assumption that the State's interest in limiting the tax burden on its citizens to that for which its law provides is a secondary policy, deserving of little respect from us. IV The final basis on which both the majority and respondents rest is that years of unexamined habit by litigants and the courts alike have resulted in federal courts' entertaining challenges to state tax credits. See ante, at 110-111 (citing representative cases). While we should not reverse the course of our unexamined practice lightly, our obligation is to give a correct interpretation of the statute. We are not *127 obliged to maintain the status quo when the status quo is unfounded. The exercise of federal jurisdiction does not and cannot establish jurisdiction. See United "[T]his Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio." In this respect, the present case is no different than Federal Election The case presented the question whether we had jurisdiction to consider a certiorari petition filed by the Federal Election Commission (FEC), and not by the Solicitor General on behalf of the FEC. The Court held that it lacked jurisdiction. See Though that answer seemed to contradict the Court's prior practices, the Court said: "Nor are we impressed by the FEC's argument that it has represented itself before this Court on several occasions in the past without any question having been raised about its authority to do so The jurisdiction of this Court was challenged in none of these actions, and therefore the question is an open one before us." See also " (alteration in original)). These cases make clear that our failure to consider a question hardly equates to a thing's being decided. Contra, ante, at 112-113 (STEVENS, J., concurring) (referring to prior silences of the courts with respect to the TIA as stare decisis and settled interpretation). As a consequence, I would follow the statutory language. * * * *128 After today's decision, "[n]ontaxpaying associations of taxpayers, and most other nontaxpayers, will now be allowed to sidestep Congress' policy against [federal] judicial resolution of abstract [state] tax controversies." 465 U. S., This unfortunate result deprives state courts of the first opportunity to hear such cases and to grant the relief the Constitution requires. For the foregoing reasons, with respect, I dissent.

Justice Breyer

majority

Coleman v. Tollefson

2015-05-18

https://www.courtlistener.com/opinion/2801434/coleman-v-tollefson/

https://www.courtlistener.com/api/rest/v3/clusters/2801434/

2014-043

Ordinarily, a federal litigant who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses. See 28 U.S. C. §1915. But a special “three strikes” provision prevents a court from affording in forma pauperis status where the litigant is a prisoner and he or she “has, on 3 or more prior occa­ sions, while incarcerated . . . , brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” §1915(g). Prior to this litigation, a Federal District Court had dismissed on those grounds three actions brought by a 2 COLEMAN v. TOLLEFSON Opinion of the Court state prisoner. While the third dismissal was pending on appeal, the prisoner sought to bring several additional actions in the federal courts. The question before us is whether the prisoner may litigate his new actions in forma pauperis. Where an appeals court has not yet decided whether a prior dismissal is legally proper, should courts count, or should they ignore, that dismissal when calcu­ lating how many qualifying dismissals the litigant has suffered? We conclude that the courts must count the dismissal even though it remains pending on appeal. The litigant here has accumulated three prior dismissals on statutorily enumerated grounds. Consequently, a court may not afford him in forma pauperis status with respect to his additional civil actions. I A Congress first enacted an in forma pauperis statute in 1892. See Act of July 20, ch. 209, 27 Stat. 252. Congress recognized that “no citizen sh[ould] be denied an oppor­ tunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948) (internal quotation marks omitted). It therefore permitted a citizen to “commence and prose­ cute to conclusion any such . . . action without being re­ quired to prepay fees or costs, or give security therefor before or after bringing suit.” §1, 27 Stat. 252. The cur­ rent statute permits an individual to litigate a federal action in forma pauperis if the individual files an affidavit stating, among other things, that he or she is unable to prepay fees “or give security therefor.” 28 U.S. C. §1915(a)(1). Even in 1892, “Congress recognized . . . that a litigant Cite as: 575 U. S. ____ (2015) 3 Opinion of the Court whose filing fees and court costs are assumed by the pub­ lic, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive law­ suits.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). And as the years passed, Congress came to see that pris­ oner suits in particular represented a disproportionate share of federal filings. Jones v. Bock, 549 U.S. 199, 202– 203 (2007). It responded by “enact[ing] a variety of re­ forms designed to filter out the bad claims [filed by prison­ ers] and facilitate consideration of the good.” Id., at 204. Among those reforms was the “three strikes” rule here at issue. The rule, which applies to in forma pauperis status, reads in its entirety as follows: “In no event shall a prisoner bring a civil action or ap­ peal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facil­ ity, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” §1915(g). B The petitioner, André Lee Coleman, is incarcerated at the Baraga Correctional Facility in Michigan. By 2010, three federal lawsuits filed by Coleman during his incar­ ceration had been dismissed as frivolous (or on other grounds enumerated in §1915(g)). Nonetheless, when Coleman filed four new federal lawsuits between April 2010 and January 2011, he moved to proceed in forma pauperis in each. He denied that his third dismissed lawsuit counted as a strike under §1915(g). That is be­ cause he had appealed the dismissal, and the appeals court had not yet ruled. Thus, in Coleman’s view, he had 4 COLEMAN v. TOLLEFSON Opinion of the Court fewer than three qualifying dismissals, and was eligible for in forma pauperis status under the statute. The District Court rejected Coleman’s argument. It held that “a dismissal counts as a strike even if it is pending on appeal at the time that the plaintiff files his new action.” No. 10–cv–337 (WD Mich., Apr. 12, 2011), App. to Pet. for Cert. 21a, 24a. It thus refused to permit Coleman to proceed in forma pauperis in any of his four suits. On appeal, a divided panel of the Sixth Circuit agreed with the District Court. 733 F.3d 175 (2013). It resolved the four cases using slightly different procedures. In one of the four cases, the Sixth Circuit affirmed the District Court’s judgment. In the remaining three cases, it denied Coleman’s request to proceed in forma pauperis on appeal. It subsequently dismissed the three cases for want of prosecution after Coleman failed to pay the appellate filing fees. In contrast to the Sixth Circuit, the vast majority of the other Courts of Appeals have held that a prior dismissal on a statutorily enumerated ground does not count as a strike while an appeal of that dismissal remains pending. See Henslee v. Keller, 681 F.3d 538, 541 (CA4 2012) (list­ ing, and joining, courts that have adopted the majority view). In light of the division of opinion among the Cir­ cuits, we granted Coleman’s petition for certiorari. II A In our view, the Sixth Circuit majority correctly applied §1915(g). A prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal. That, after all, is what the statute literally says. The “three strikes” provision applies where a prisoner “has, on 3 or more prior occasions . . . brought an action or appeal . . . that was dismissed on” certain grounds. §1915(g) (emphasis added). Coleman believes Cite as: 575 U. S. ____ (2015) 5 Opinion of the Court that we should read the statute as if it referred to an “affirmed dismissal,” as if it considered a trial court dis­ missal to be provisional, or as if it meant that a dismissal falls within the statute’s scope only when the litigant has no further chance to secure a reversal. But the statute itself says none of these things. Instead, the statute refers to whether an action or ap­ peal “was dismissed.” §1915(g). The linguistic term “dis­ miss,” taken alone, does not normally include subsequent appellate activity. See, e.g., Heintz v. Jenkins, 514 U.S. 291, 294 (1995) (“[T]he District Court dismissed [the] lawsuit for failure to state a claim. . . . However, the Court of Appeals for the Seventh Circuit reversed the District Court’s judgment”); Gray v. Netherland, 518 U.S. 152, 158 (1996) (“The Suffolk Circuit Court dismissed petitioner’s state petition for a writ of habeas corpus. The Virginia Supreme Court affirmed the dismissal”). Indeed, §1915 itself describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts. See §1915(e)(2) (“[T]he court shall dismiss the case at any time if the court determines that—(A) the allega­ tion of poverty is untrue; or (B) the action or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted” (emphasis added)). Coleman insists that §1915(g) is not so clear. Even if the term “dismissed” is unambiguous, contends Coleman, the phrase “prior occasions” creates ambiguity. Coleman observes that the phrase “ ‘may refer to a single moment or to a continuing event: to an appeal, independent of the underlying action, or to the continuing claim, inclusive of both the action and its appeal.’ ” Brief for Petitioner 17 (quoting Henslee, supra, at 542). Coleman believes that a “prior occasion” in the context of §1915(g) may therefore include both a dismissal on an enumerated ground and any subsequent appeal. We find it difficult to agree. Linguistically speaking, we 6 COLEMAN v. TOLLEFSON Opinion of the Court see nothing about the phrase “prior occasions” that would transform a dismissal into a dismissal-plus-appellate­ review. An “occasion” is “a particular occurrence,” a “hap­ pening,” or an “incident.” Webster’s Third New Interna­ tional Dictionary 1560 (3d ed. 1993). And the statute provides the content of that occurrence, happening, or incident: It is an instance in which a “prisoner has . . . brought an action or appeal in a court of the United States that was dismissed on” statutorily enumerated grounds. §1915(g). Under the plain language of the statute, when Coleman filed the suits at issue here, he had already experienced three such “prior occasions.” Our literal reading of the phrases “prior occasions” and “was dismissed” is consistent with the statute’s discussion of actions and appeals. The in forma pauperis statute repeatedly treats the trial and appellate stages of litiga­ tion as distinct. See §§1915(a)(2), (a)(3), (b)(1), (e)(2), (g). Related provisions reflect a congressional focus upon trial court dismissal as an important separate element of the statutory scheme. See §1915A (requiring a district court to screen certain prisoner complaints “as soon as practica­ ble” and to dismiss any portion of the complaint that “is frivolous, malicious, or fails to state a claim upon which relief may be granted”); 42 U.S. C. §1997e(c)(1) (similar). We have found nothing in these provisions indicating that Congress considered a trial court dismissal and an appel­ late court decision as if they were a single entity—or that Congress intended the former to take effect only when affirmed by the latter. Our literal reading of the “three strikes” provision also is supported by the way in which the law ordinarily treats trial court judgments. Unless a court issues a stay, a trial court’s judgment (say, dismissing a case) normally takes effect despite a pending appeal. See Fed. Rule Civ. Proc. 62; Fed. Rule App. Proc. 8(a). And a judgment’s preclusive effect is generally immediate, notwithstanding any appeal. Cite as: 575 U. S. ____ (2015) 7 Opinion of the Court See Clay v. United States, 537 U.S. 522, 527 (2003) (“Typ­ ically, a federal judgment becomes final for . . . claim preclusion purposes when the district court disassociates itself from the case, leaving nothing to be done at the court of first instance save execution of the judgment”). The ordinary rules of civil procedure thus provide additional support for our interpretation of the statute. See Jones, 549 U.S., at 211–216 (applying the ordinary rules of civil procedure where the procedural requirements for prison litigation do not call for an alternative). Finally, the statute’s purpose favors our interpretation. The “three strikes” provision was “designed to filter out the bad claims and facilitate consideration of the good.” Id., at 204. To refuse to count a prior dismissal because of a pending appeal would produce a leaky filter. Appeals take time. During that time, a prisoner could file many lawsuits, including additional lawsuits that are frivolous, malicious, or fail to state a claim upon which relief may be granted. Indeed, Coleman filed these four cases after he suffered his third qualifying dismissal, in October 2009, and before the affirmance of that order, in March 2011. We recognize that our interpretation of the statute may create a different risk: An erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great. For one thing, the Solicitor General informs us that he has been able to identify only two instances in which a Court of Appeals has reversed a District Court’s issuance of a third strike. Brief for United States as Amicus Curiae 22, n. 5. For another, where a court of appeals reverses a third strike, in some instances the prisoner will be able to refile his or her lawsuit after the reversal, seeking in forma pauperis status at that time. Further, if the statute of limitations governing that lawsuit has run out before the court of appeals reverses the third strike, the Solicitor 8 COLEMAN v. TOLLEFSON Opinion of the Court General assures us that prisoners will find relief in Federal Rule of Civil Procedure 60(b). According to the Solicitor General, a prisoner may move to reopen his or her interim lawsuits (reinstating the cases as of the dates originally filed) and may then seek in forma pauperis status anew. In any event, we believe our interpretation of the statute hews more closely to its meaning and objective than does Coleman’s alternative. B Coleman makes an additional argument. He poses a hypothetical: What if this case had involved an attempt to appeal from the trial court’s dismissal of his third com­ plaint instead of an attempt to file several additional complaints? If the dismissal were counted as his third strike, Coleman asserts, he would lose the ability to ap­ peal in forma pauperis from that strike itself. He believes that this result, which potentially could deprive him of appellate review, would be unfair. He further believes that it would be such a departure from the federal courts’ normal appellate practice that Congress could not possibly have intended it. The Solicitor General, while subscribing to our interpre­ tation of the statute, supports Coleman on this point. The Solicitor General says that we can and should read the statute to afford a prisoner in forma pauperis status with respect to an appeal from a third qualifying dismissal— even if it does not allow a prisoner to file a fourth case during that time. He believes that the statute, in refer­ ring to dismissals “on 3 or more prior occasions,” 28 U.S. C. §1915(g) (emphasis added), means that a trial court dismissal qualifies as a strike only if it occurred in a prior, different, lawsuit. We need not, and do not, now decide whether the Solici­ tor General’s interpretation (or some other interpretation with the same result) is correct. That is because Coleman Cite as: 575 U. S. ____ (2015) 9 Opinion of the Court is not here appealing from a third-strike trial-court dis­ missal. He is appealing from the denial of in forma pau- peris status with respect to several separate suits filed after the trial court dismissed his earlier third-strike suit. With respect to those suits, the earlier dismissals certainly took place on “prior occasions.” If and when the situation that Coleman hypothesizes does arise, the courts can consider the problem in context. * * * For the reasons stated, we hold that a prisoner who has accumulated three prior qualifying dismissals under §1915(g) may not file an additional suit in forma pauperis while his appeal of one such dismissal is pending. The judgments of the Court of Appeals are Affirmed

Ordinarily, a federal litigant who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses. See 28 U.S. C. But a special “three strikes” provision prevents a court from affording in forma pauperis status where the litigant is a prisoner and he or she “has, on 3 or more prior occa­ sions, while incarcerated brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Prior to this litigation, a Federal District Court had dismissed on those grounds three actions brought by a 2 COLEMAN v. TOLLEFSON Opinion of the Court state prisoner. While the third dismissal was pending on appeal, the prisoner sought to bring several additional actions in the federal courts. The question before us is whether the prisoner may litigate his new actions in forma pauperis. Where an appeals court has not yet decided whether a prior dismissal is legally proper, should courts count, or should they ignore, that dismissal when calcu­ lating how many qualifying dismissals the litigant has suffered? We conclude that the courts must count the dismissal even though it remains pending on appeal. The litigant here has accumulated three prior dismissals on statutorily enumerated grounds. Consequently, a court may not afford him in forma pauperis status with respect to his additional civil actions. I A Congress first enacted an in forma pauperis statute in 1892. See Act of July 20, ch. 209, Congress recognized that “no citizen sh[ould] be denied an oppor­ tunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948) (internal quotation marks omitted). It therefore permitted a citizen to “commence and prose­ cute to conclusion any such action without being re­ quired to prepay fees or costs, or give security therefor before or after bringing suit.” The cur­ rent statute permits an individual to litigate a federal action in forma pauperis if the individual files an affidavit stating, among other things, that he or she is unable to prepay fees “or give security therefor.” 28 U.S. C. Even in 1892, “Congress recognized that a litigant Cite as: 575 U. S. (2015) 3 Opinion of the Court whose filing fees and court costs are assumed by the pub­ lic, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive law­ suits.” And as the years passed, Congress came to see that pris­ oner suits in particular represented a disproportionate share of federal filings. 202– 203 (2007). It responded by “enact[ing] a variety of re­ forms designed to filter out the bad claims [filed by prison­ ers] and facilitate consideration of the good.” Among those reforms was the “three strikes” rule here at issue. The rule, which applies to in forma pauperis status, reads in its entirety as follows: “In no event shall a prisoner bring a civil action or ap­ peal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facil­ ity, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” B The petitioner, André Lee Coleman, is incarcerated at the Baraga Correctional Facility in Michigan. By 2010, three federal lawsuits filed by Coleman during his incar­ ceration had been dismissed as frivolous (or on other grounds enumerated in Nonetheless, when Coleman filed four new federal lawsuits between April 2010 and January 2011, he moved to proceed in forma pauperis in each. He denied that his third dismissed lawsuit counted as a strike under That is be­ cause he had appealed the dismissal, and the appeals court had not yet ruled. Thus, in Coleman’s view, he had 4 COLEMAN v. TOLLEFSON Opinion of the Court fewer than three qualifying dismissals, and was eligible for in forma pauperis status under the statute. The District Court rejected Coleman’s argument. It held that “a dismissal counts as a strike even if it is pending on appeal at the time that the plaintiff files his new action.” No. 10–cv–337 (WD Mich., Apr. 12, 2011), App. to Pet. for Cert. 21a, 24a. It thus refused to permit Coleman to proceed in forma pauperis in any of his four suits. On appeal, a divided panel of the Sixth Circuit agreed with the District Court. It resolved the four cases using slightly different procedures. In one of the four cases, the Sixth Circuit affirmed the District Court’s judgment. In the remaining three cases, it denied Coleman’s request to proceed in forma pauperis on appeal. It subsequently dismissed the three cases for want of prosecution after Coleman failed to pay the appellate filing fees. In contrast to the Sixth Circuit, the vast majority of the other Courts of Appeals have held that a prior dismissal on a statutorily enumerated ground does not count as a strike while an appeal of that dismissal remains pending. See (list­ ing, and joining, courts that have adopted the majority view). In light of the division of opinion among the Cir­ cuits, we granted Coleman’s petition for certiorari. II A In our view, the Sixth Circuit majority correctly applied A prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal. That, after all, is what the statute literally says. The “three strikes” provision applies where a prisoner “has, on 3 or more prior occasions brought an action or appeal that was dismissed on” certain grounds. (emphasis added). Coleman believes Cite as: 575 U. S. (2015) 5 Opinion of the Court that we should read the statute as if it referred to an “affirmed dismissal,” as if it considered a trial court dis­ missal to be provisional, or as if it meant that a dismissal falls within the statute’s scope only when the litigant has no further chance to secure a reversal. But the statute itself says none of these things. Instead, the statute refers to whether an action or ap­ peal “was dismissed.” The linguistic term “dis­ miss,” taken alone, does not normally include subsequent appellate activity. See, e.g., Heintz v. Jenkins, 514 U.S. 291, 294 (1995) (“[T]he District Court dismissed [the] lawsuit for failure to state a claim. However, the Court of Appeals for the Seventh Circuit reversed the District Court’s judgment”); (1996) (“The Suffolk Circuit Court dismissed petitioner’s state petition for a writ of habeas corpus. The Virginia Supreme Court affirmed the dismissal”). Indeed, itself describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts. See (e)(2) (“[T]he court shall dismiss the case at any time if the court determines that—(A) the allega­ tion of poverty is untrue; or (B) the action or appeal—(i) is frivolous or malicious; [or] (ii) fails to state a claim on which relief may be granted” (emphasis added)). Coleman insists that is not so clear. Even if the term “dismissed” is unambiguous, contends Coleman, the phrase “prior occasions” creates ambiguity. Coleman observes that the phrase “ ‘may refer to a single moment or to a continuing event: to an appeal, independent of the underlying action, or to the continuing claim, inclusive of both the action and its appeal.’ ” Brief for Petitioner 17 (quoting ). Coleman believes that a “prior occasion” in the context of may therefore include both a dismissal on an enumerated ground and any subsequent appeal. We find it difficult to agree. Linguistically speaking, we 6 COLEMAN v. TOLLEFSON Opinion of the Court see nothing about the phrase “prior occasions” that would transform a dismissal into a dismissal-plus-appellate­ review. An “occasion” is “a particular occurrence,” a “hap­ pening,” or an “incident.” Webster’s Third New Interna­ tional Dictionary 1560 (3d ed. 1993). And the statute provides the content of that occurrence, happening, or incident: It is an instance in which a “prisoner has brought an action or appeal in a court of the United States that was dismissed on” statutorily enumerated grounds. Under the plain language of the statute, when Coleman filed the suits at issue here, he had already experienced three such “prior occasions.” Our literal reading of the phrases “prior occasions” and “was dismissed” is consistent with the statute’s discussion of actions and appeals. The in forma pauperis statute repeatedly treats the trial and appellate stages of litiga­ tion as distinct. See §(a)(2), (a)(3), (b)(1), (e)(2), (g). Related provisions reflect a congressional focus upon trial court dismissal as an important separate element of the statutory scheme. See A (requiring a district court to screen certain prisoner complaints “as soon as practica­ ble” and to dismiss any portion of the complaint that “is frivolous, malicious, or fails to state a claim upon which relief may be granted”); 42 U.S. C. (similar). We have found nothing in these provisions indicating that Congress considered a trial court dismissal and an appel­ late court decision as if they were a single entity—or that Congress intended the former to take effect only when affirmed by the latter. Our literal reading of the “three strikes” provision also is supported by the way in which the law ordinarily treats trial court judgments. Unless a court issues a stay, a trial court’s judgment (say, dismissing a case) normally takes effect despite a pending appeal. See Fed. Rule Civ. Proc. 62; Fed. Rule App. Proc. 8(a). And a judgment’s preclusive effect is generally immediate, notwithstanding any appeal. Cite as: 575 U. S. (2015) 7 Opinion of the Court See (“Typ­ ically, a federal judgment becomes final for claim preclusion purposes when the district court disassociates itself from the case, leaving nothing to be done at the court of first instance save execution of the judgment”). The ordinary rules of civil procedure thus provide additional support for our interpretation of the statute. See Jones, –216 (applying the ordinary rules of civil procedure where the procedural requirements for prison litigation do not call for an alternative). Finally, the statute’s purpose favors our interpretation. The “three strikes” provision was “designed to filter out the bad claims and facilitate consideration of the good.” To refuse to count a prior dismissal because of a pending appeal would produce a leaky filter. Appeals take time. During that time, a prisoner could file many lawsuits, including additional lawsuits that are frivolous, malicious, or fail to state a claim upon which relief may be granted. Indeed, Coleman filed these four cases after he suffered his third qualifying dismissal, in October 2009, and before the affirmance of that order, in March 2011. We recognize that our interpretation of the statute may create a different risk: An erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great. For one thing, the Solicitor General informs us that he has been able to identify only two instances in which a Court of Appeals has reversed a District Court’s issuance of a third strike. Brief for United States as Amicus Curiae 22, n. 5. For another, where a court of appeals reverses a third strike, in some instances the prisoner will be able to refile his or her lawsuit after the reversal, seeking in forma pauperis status at that time. Further, if the statute of limitations governing that lawsuit has run out before the court of appeals reverses the third strike, the Solicitor 8 COLEMAN v. TOLLEFSON Opinion of the Court General assures us that prisoners will find relief in Federal Rule of Civil Procedure 60(b). According to the Solicitor General, a prisoner may move to reopen his or her interim lawsuits (reinstating the cases as of the dates originally filed) and may then seek in forma pauperis status anew. In any event, we believe our interpretation of the statute hews more closely to its meaning and objective than does Coleman’s alternative. B Coleman makes an additional argument. He poses a hypothetical: What if this case had involved an attempt to appeal from the trial court’s dismissal of his third com­ plaint instead of an attempt to file several additional complaints? If the dismissal were counted as his third strike, Coleman asserts, he would lose the ability to ap­ peal in forma pauperis from that strike itself. He believes that this result, which potentially could deprive him of appellate review, would be unfair. He further believes that it would be such a departure from the federal courts’ normal appellate practice that Congress could not possibly have intended it. The Solicitor General, while subscribing to our interpre­ tation of the statute, supports Coleman on this point. The Solicitor General says that we can and should read the statute to afford a prisoner in forma pauperis status with respect to an appeal from a third qualifying dismissal— even if it does not allow a prisoner to file a fourth case during that time. He believes that the statute, in refer­ ring to dismissals “on 3 or more prior occasions,” 28 U.S. C. (emphasis added), means that a trial court dismissal qualifies as a strike only if it occurred in a prior, different, lawsuit. We need not, and do not, now decide whether the Solici­ tor General’s interpretation (or some other interpretation with the same result) is correct. That is because Coleman Cite as: 575 U. S. (2015) 9 Opinion of the Court is not here appealing from a third-strike trial-court dis­ missal. He is appealing from the denial of in forma pau- peris status with respect to several separate suits filed after the trial court dismissed his earlier third-strike suit. With respect to those suits, the earlier dismissals certainly took place on “prior occasions.” If and when the situation that Coleman hypothesizes does arise, the courts can consider the problem in context. * * * For the reasons stated, we hold that a prisoner who has accumulated three prior qualifying dismissals under may not file an additional suit in forma pauperis while his appeal of one such dismissal is pending. The judgments of the Court of Appeals are Affirmed

Justice Ginsburg

majority

Arizonans for Official English v. Arizona

1997-03-03

https://www.courtlistener.com/opinion/118093/arizonans-for-official-english-v-arizona/

https://www.courtlistener.com/api/rest/v3/clusters/118093/

1996-034

Federal courts lack competence to rule definitively on the meaning of state legislation, see, e. g., Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970), nor may they adjudicate challenges to state measures absent a showing of actual impact on the challenger, see, e. g., Golden v. Zwickler, 394 U.S. 103, 110 (1969). The Ninth Circuit, in the case at hand, lost sight of these limitations. The initiating plaintiff, Maria-Kelly F. Yniguez, sought federal-court resolution of a novel question: the compatibility with the Federal Constitution of a 1988 amendment to Arizona's Constitution declaring English "the official language of the State of Arizona"—"the language of. . . all government functions and actions." Ariz. Const., Art. XXVIII, §§ 1(1), 1(2). Participants in the federal litigation, proceeding without benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment. Yniguez commenced and maintained her suit as an individual, not as a class representative. A state employee at the time she filed her complaint, Yniguez voluntarily left the State's employ in 1990 and did not allege she would seek to return to a public post. Her departure for a position in the private sector made her claim for prospective relief moot. Nevertheless, the Ninth Circuit held that a plea for nominal damages could be read into Yniguez's complaint to save the case, and therefore pressed on to an ultimate decision. A three-judge panel of the Court of Appeals declared Article XXVIII unconstitutional in 1994, and a divided en banc court, in 1995, adhered to the panel's position. The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy and should not have been retained for adjudication on the merits by the Court of Appeals. We therefore *49 vacate the Ninth Circuit's judgment, and remand the case to that court with directions that the action be dismissed by the District Court. We express no view on the correct interpretation of Article XXVIII or on the measure's constitutionality. I A 1988 Arizona ballot initiative established English as the official language of the State. Passed on November 8, 1988, by a margin of one percentage point,[1] the measure became effective on December 5 as Arizona State Constitution Article XXVIII. Among key provisions, the Article declares that, with specified exceptions, the State "shall act in English and in no other language." Ariz. Const., Art. XXVIII, § 3(1)(a). The enumerated exceptions concern compliance with federal laws, participation in certain educational programs, protection of the rights of criminal defendants and crime victims, and protection of public health or safety. Id., § 3(2). In a final provision, Article XXVIII grants standing to any person residing or doing business in the State "to bring suit to enforce th[e] Article" in state court, under such "reasonable limitations" as "[t]he Legislature may enact." Id., § 4.[2] Federal-court litigation challenging the constitutionality of Article XXVIII commenced two days after the ballot initiative passed. On November 10, 1988, Maria-Kelly F. Yniguez, then an insurance claims manager in the Arizona Department of Administration's Risk Management Division, sued the State of Arizona in the United States District Court for the District of Arizona. Yniguez invoked 42 U.S. C. *50 § 1983 as the basis for her suit.[3] Soon after the lawsuit commenced, Yniguez added as defendants, in their individual and official capacities, Arizona Governor Rose Mofford, Arizona Attorney General Robert K. Corbin, and the Director of Arizona's Department of Administration, Catherine Eden. Yniguez brought suit as an individual and never sought designation as a class representative. Fluent in English and Spanish, Yniguez was engaged primarily in handling medical malpractice claims against the State. In her daily service to the public, she spoke English to persons who spoke only that language, Spanish to persons who spoke only that language, and a combination of English and Spanish to persons able to communicate in both languages. Record, Doc. No. 62, ¶¶ 8, 13 (Statement of Stipulated Facts, filed Feb. 9, 1989). Yniguez feared that Article XXVIII's instruction to "act in English," § 3(1)(a), if read broadly, would govern her job performance "every time she [did] something." See Record, Doc. No. 62, ¶ 10. She believed she would lose her job or face other sanctions if she did not immediately refrain from speaking Spanish while serving the State. See App. 58, ¶ 19 (Second Amended Complaint). Yniguez asserted that Article XXVIII violated the First and Fourteenth Amendments to the United States Constitution and Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S. C. § 2000d. She requested injunctive and declaratory relief, counsel fees, and "all other relief that the *51 Court deems just and proper under the circumstances." App. 60. All defendants named in Yniguez's complaint moved to dismiss all claims asserted against them.[4] The State of Arizona asserted immunity from suit under the Eleventh Amendment. The individual defendants asserted the absence of a case or controversy because "none of [them] ha[d] threatened [Yniguez] concerning her use of Spanish in the performance of her job duties [or had] ever told her not to use Spanish [at work]." Record, Doc. No. 30, p. 1. The defendants further urged that novel state-law questions concerning the meaning and application of Article XXVIII should be tendered first to the state courts. See id., at 2.[5] Trial on the merits of Yniguez's complaint, the parties agreed, would be combined with the hearing on her motion for a preliminary injunction.[6] Before the trial occurred, the State Attorney General, on January 24, 1989, released an opinion, No. I89-009, construing Article XXVIII and explaining why he found the measure constitutional. App. 61-76. *52 In Opinion No. I89-009, the Attorney General said it was his obligation to read Article XXVIII "as a whole," in line "with the other portions of the Arizona Constitution" and "with the United States Constitution and federal laws." App. 61. While Article XXVIII requires the performance of "official acts of government" in English, it was the Attorney General's view that government employees remained free to use other languages "to facilitate the delivery of governmental services." Id., at 62. Construction of the word "act," as used in Article XXVIII, to mean more than an "official ac[t] of government," the Attorney General asserted, "would raise serious questions" of compatibility with federal and state equal protection guarantees and federal civil rights legislation. Id., at 65-66.[7] On February 9, 1989, two weeks after release of the Attorney General's opinion, the parties filed a statement of stipulated facts, which reported Governor Mofford's opposition to the ballot initiative, her intention nevertheless "to comply with Article XXVIII," and her expectation that "State service employees [would] comply" with the measure. See Record, Doc. No. 62, ¶¶ 35, 36, 39. The stipulation confirmed the view of all parties that "[t]he efficient operation [and administration] of the State is enhanced by permitting State service employees to communicate with citizens of the State in languages other than English where the citizens are not proficient in English." Id., ¶¶ 16, 17. In particular, the parties recognized that "Yniguez'[s] use of a language other *53 than English in the course of her performing government business contributes to the efficient operation . . .and . . . administration of the State." Id., ¶ 15. The stipulation referred to the Attorney General's January 24, 1989, opinion, id., ¶ 46, and further recounted that since the passage of Article XXVIII, "none of [Yniguez's] supervisors ha[d] ever told her to change or cease her prior use of Spanish in the performance of her duties," id., ¶ 48.[8] The District Court heard testimony on two days in February and April 1989, and disposed of the case in an opinion and judgment filed February 6, 1990. Yniguez v. Mofford, 730 F. Supp. 309. Prior to that final decision, the court had dismissed the State of Arizona as a defendant, accepting the State's plea of Eleventh Amendment immunity. See id., at 311. Yniguez's second amended complaint, filed February 23, 1989, accordingly named as defendants only the Governor, the Attorney General, and the Director of the Department of Administration. See App. 55.[9] The District Court determined first that, among the named defendants, only the Governor, in her official capacity, was a proper party. The Attorney General, the District Court found, had no authority under Arizona law to enforce provisions like Article XXVIII against state employees. 730 F. Supp., at 311-312. The Director and the Governor, *54 on the other hand, did have authority to enforce state laws and rules against state service employees. Id., at 311. But nothing in the record, the District Court said, showed that the Director had undertaken or threatened to undertake any action adverse to Yniguez. Id., at 313. That left Governor Mofford. The Attorney General "ha[d] formally interpreted Article XXVIII as not imposing any restrictions on Yniguez's continued use of Spanish during the course of her official duties," id., at 312, and indeed all three named defendants— Mofford as well as Corbin and Eden, see supra, at 50—"ha[d] stated on the record that Yniguez may continue to speak Spanish without fear of official retribution." 730 F. Supp., at 312. Governor Mofford therefore reiterated that Yniguez faced no actual or threatened injury attributable to any Arizona executive branch officer, and hence presented no genuine case or controversy. See ibid. But the District Court singled out the stipulations that "Governor Mofford intends to comply with Article XXVIII," and "expects State service employees to comply with Article XXVIII." Record, Doc. No. 62, ¶¶ 35, 36; see 730 F. Supp., at 312. If Yniguez proved right and the Governor wrong about the breadth of Article XXVIII, the District Court concluded, then Yniguez would be vulnerable to the Governor's pledge to enforce compliance with the Article. See ibid. Proceeding to the merits, the District Court found Article XXVIII fatally overbroad. The measure, as the District Court read it, was not merely a direction that all official acts be in English, as the Attorney General's opinion maintained; instead, according to the District Court, Article XXVIII imposed a sweeping ban on the use of any language other than English by all of Arizona officialdom, with only limited exceptions. Id., at 314. The District Court adverted to the Attorney General's confining construction, but found it unpersuasive. Opinion No. 189-009, the District Court observed, is "merely . . . advisory," not binding on any *55 court. 730 F. Supp., at 315. "More importantly," the District Court concluded, "the Attorney General's interpretation . . . is simply at odds with Article XXVIII's plain language." Ibid. The view that Article XXVIII's text left no room for a moderate and restrained interpretation led the District Court to decline "to allow the Arizona courts the initial opportunity to determine the scope of Article XXVIII." Id., at 316. The District Court ultimately dismissed all parties save Yniguez and Governor Mofford in her official capacity, then declared Article XXVIII unconstitutional as violative of the First and Fourteenth Amendments, but denied Yniguez's request for an injunction because "she ha[d] not established an enforcement threat sufficient to warrant [such] relief." Id., at 316-317. Postjudgment motions followed, sparked by Governor Mofford's announcement that she would not pursue an appeal. See App. 98. The Attorney General renewed his request to certify the pivotal state-law question—the correct construction of Article XXVIII—to the Arizona Supreme Court. See Record, Doc. No. 82. He also moved to intervene on behalf of the State, pursuant to 28 U.S. C. § 2403(b),[10] in order to contest on appeal the District Court's declaration that a provision of Arizona's Constitution violated the Federal Constitution. Record, Doc. Nos. 92, 93. *56 Two newcomers also appeared in the District Court after judgment: the Arizonans for Official English Committee (AOE) and Robert D. Park, Chairman of AOE. Invoking Rule 24 of the Federal Rules of Civil Procedure, AOE and Park moved to intervene as defendants in order to urge on appeal the constitutionality of Article XXVIII. App. 94— 102. AOE, an unincorporated association, was principal sponsor of the ballot initiative that became Article XXVIII. AOE and Park alleged in support of their intervention motion the interest of AOE members in enforcement of Article XXVIII and Governor Mofford's unwillingness to defend the measure on appeal. Responding to the AOE/Park motion, Governor Mofford confirmed that she did not wish to appeal, but would have no objection to the Attorney General's intervention to pursue an appeal as the State's representative, or to the pursuit of an appeal by any other party. See Record, Doc. No. 94. Yniguez expressed reservations about proceeding further. "She ha[d] won [her] suit against her employer" and had "obtained her relief," her counsel noted. Record, Doc. No. 114, p. 18 (Tr. of Proceeding on Motion to Intervene and Motion to Alter or Amend Judgment, Mar. 26, 1990). If the litigation "goes forward," Yniguez's counsel told the District Court, "I guess we do, too," but, counsel added, it might be in Yniguez's "best interest . . . if we stopped it right here." Ibid. The District Court agreed. In an opinion filed April 3, 1990, the District Court denied all three postjudgment motions. Yniguez v. Mofford, 130 F. R. D. 410. Certification was inappropriate, the District Court ruled, in light of the court's prior rejection of the Attorney General's narrow reading of Article XXVIII. See id. , at 412. As to the Attorney General's intervention application, the District Court observed that § 2403(b) addresses only actions "`to which the State or any agency, officer, or employee thereof is not a party.' " See id., at 413 (quoting § 2403(b)). Yniguez's action did not fit the § 2403(b) description, *57 the District Court said, because the State and its officers were the very defendants—the sole defendants— Yniguez's complaint named. Governor Mofford remained a party throughout the District Court proceedings. If the State lost the opportunity to defend the constitutionality of Article XXVIII on appeal, the District Court reasoned, it was "only because Governor Mofford determine[d] that the state's sovereign interests would be best served by foregoing an appeal." Ibid. Turning to the AOE/Park intervention motion, the District Court observed first that the movants had failed to file a pleading "setting forth the[ir] claim or defense," as required by Rule 24(c). Ibid. But that deficiency was not critical, the District Court said. Ibid. The insurmountable hurdle was Article III standing. The labor and resources AOE spent to promote the ballot initiative did not suffice to establish standing to sue or defend in a federal tribunal, the District Court held. Id., at 414-415. Nor did Park or any other AOE member qualify for party status, the District Court ruled, for the interests of voters who favored the initiative were too general to meet traditional standing criteria. Id. , at 415. In addition, the District Court was satisfied that AOE and Park could not tenably assert practical impairment of their interests stemming from the precedential force of the decision. As nonparticipants in the federal litigation, they would face no issue preclusion. And a lower federal-court judgment is not binding on state courts, the District Court noted. Thus, AOE and Park would not be precluded by the federal declaration from pursuing "any future state court proceeding [based on] Article XXVIII." Id. , at 415-416. II The Ninth Circuit viewed the matter of standing to appeal differently. In an opinion released July 19, 1991, Yniguez v. Arizona, 939 F.2d 727, the Court of Appeals reached these *58 conclusions: AOE and Park met Article III requirements and could proceed as appellants; Arizona's Attorney General, however, having successfully moved in the District Court for his dismissal as a defendant, could not reenter as a party, but would be permitted to present argument regarding the constitutionality of Article XXVIII. Id., at 738-740. The Ninth Circuit reported it would retain jurisdiction over the District Court's decision on the merits, id. , at 740, but did not then address the question whether Article XXVIII's meaning should be certified for definitive resolution by the Arizona Supreme Court. Concerning AOE's standing, the Court of Appeals reasoned that the Arizona Legislature would have standing to defend the constitutionality of a state statute; by analogy, the Ninth Circuit maintained, AOE, as principal sponsor of the ballot initiative, qualified to defend Article XXVIII on appeal. Id., at 732-733; see also id. , at 734, n. 5 ("[W]e hold that AOE has standing in the same way that a legislature might."). AOE Chairman Park also had standing to appeal, according to the Ninth Circuit, because Yniguez "could have had a reasonable expectation that Park (and possibly AOE as well) would bring an enforcement action against her" under § 4 of Article XXVIII, which authorizes any person residing in Arizona to sue in state court to enforce the Article. Id. , at 734, and n. 5.[11] *59 Having allowed AOE and Park to serve as appellants, the Court of Appeals held Arizona's Attorney General "judicial[ly] estoppe[d]" from again appearing as a party. Id. , at 738-739; see also id. , at 740 ("[H]aving asked the district court to dismiss him as a party, [the Attorney General] cannot now become one again.").[12] With Governor Mofford choosing not to seek Court of Appeals review, the appeal became one to which neither "[the] State [n]or any agency, officer, or employee thereof [was] a party," the Ninth Circuit observed, so the State's Attorney General could appear pursuant to 28 U.S. C. § 2403(b). See 939 F.2d, at 739.[13] But, the Ninth Circuit added, § 2403(b) "confers only a limited right," a right pendent to the AOE/Park appeal, "to make an argument on the question of [Article XXVIII's] constitutionality." Id., at 739-740. Prior to the Ninth Circuit's July 1991 opinion, indeed the very day after AOE, Park, and the Arizona Attorney General filed their notices of appeal, a development of prime importance occurred. On April 10, 1990, Yniguez resigned from state employment in order to accept another job. Her resignation *60 apparently became effective on April 25, 1990. Arizona's Attorney General so informed the Ninth Circuit in September 1991, "suggest[ing] that this case may lack a viable plaintiff and, hence, may be moot." Suggestion of Mootness in Nos. 90-15546 and 90-15581 (CA9), Affidavit and Exh. A. One year later, on September 16, 1992, the Ninth Circuit rejected the mootness suggestion. Yniguez v. Arizona, 975 F.2d 646. The court's ruling adopted in large part Yniguez's argument opposing a mootness disposition. See App. 194-204 (Appellee Yniguez's Response Regarding Mootness Considerations). "[T]he plaintiff may no longer be affected by the English only provision," the Court of Appeals acknowledged. 975 F.2d, at 647. Nevertheless, the court continued, "[her] constitutional claims may entitle her to an award of nominal damages." Ibid. Her complaint did "not expressly request nominal damages," the Ninth Circuit noted, but "it did request `all other relief that the Court deems just and proper under the circumstances.' " Id. , at 647, n. 1; see supra, at 50-51. Thus, the Court of Appeals reasoned, one could regard the District Court's judgment as including an "implicit denial" of nominal damages. 975 F.2d, at 647, n. 2. To permit Yniguez and AOE to clarify their positions, the Ninth Circuit determined to return the case to the District Court. There, with the Ninth Circuit's permission, AOE's Chairman Park could file a notice of appeal from the District Court's judgment, following up the Circuit's decision 14 months earlier allowing AOE and Park to intervene. Id. , at 647.[14] And next, Yniguez could cross-appeal to place before *61 the Ninth Circuit, explicitly, the issue of nominal damages. Id. , at 647, and n. 2.[15] In line with the Ninth Circuit's instructions, the case file was returned to the District Court on November 5, 1992; AOE and Park filed their second notice of appeal on December 3, App. 206-208, and Yniguez cross-appealed on December 15, App. 209.[16] The Ninth Circuit heard argument on the merits on May 3, 1994. After argument, on June 21, 1994, the Ninth Circuit allowed Arizonans Against Constitutional Tampering (AACT) and Thomas Espinosa, Chairman of AACT, to intervene as plaintiffs-appellees. App. 14; Yniguez v. Arizona, 42 F.3d 1217, 1223-1224 (1994) (amended Jan. 17, 1995). AACT was the principal opponent of the ballot initiative that became Article XXVIII. Id., at 1224. In permitting this late intervention, the Court of Appeals noted that "it d[id] not rely on [AACT's] standing as a party." Ibid. The standing of the preargument participants, in the Ninth Circuit's view, sufficed to support a determination on the merits. See ibid. In December 1994, the Ninth Circuit panel that had superintended the case since 1990 affirmed the judgment declaring Article XXVIII unconstitutional and remanded the case, directing the District Court to award Yniguez nominal damages. *62 42 F.3d 1217 (amended Jan. 17, 1995). Despite the Court of Appeals' July 1991 denial of party status to Arizona, the Ninth Circuit apparently viewed the State as the defendant responsible for any damages, for it noted: "The State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages." Id. , at 1243. The Ninth Circuit agreed to rehear the case en banc, 53 F.3d 1084 (1995), and in October 1995, by a 6-to-5 vote, the en banc court reinstated the panel opinion with minor alterations. 69 F.3d 920. Adopting the District Court's construction of Article XXVIII, the en banc court read the provision to prohibit "`the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in § 3(2) of Article XXVIII.' " 69 F.3d, at 928 (quoting 730 F. Supp., at 314). Because the court found the "plain language" dispositive, 69 F.3d, at 929, it rejected the State Attorney General's limiting construction and declined to certify the matter to the Arizona Supreme Court, id., at 929-931. As an additional reason for its refusal to grant the Attorney General's request for certification, the en banc court stated: "The Attorney General . . . never conceded that [Article XXVIII] would be unconstitutional if construed as Yniguez asserts it properly should be." Id., at 931, and n. 14.[17] The Ninth Circuit also pointed to a state-court challenge to the constitutionality of *63 Article XXVIII, Ruiz v. State, No. CV92-19603 (Sup. Ct. Maricopa County, Jan. 24, 1994). In Ruiz, the Ninth Circuit observed, the state court of first instance "dispos[ed] of [the] First Amendment challenge in three paragraphs" and "d[id] nothing to narrow [the provision]." 69 F.3d, at 931.[18] After construing Article XXVIII as sweeping in scope, the en banc Court of Appeals condemned the provision as manifestly overbroad, trenching untenably on speech rights of Arizona officials and public employees. See id., at 931-948. For prevailing in the § 1983 action, the court ultimately announced, Yniguez was "entitled to nominal damages." Id., at 949. On remand, the District Court followed the en banc Court of Appeals' order and, on November 3, 1995, awarded Yniguez $1 in damages. App. 211. AOE and Park petitioned this Court for a writ of certiorari to the Ninth Circuit.[19] They raised two questions: (1) Does Article XXVIII violate the Free Speech Clause of the First *64 Amendment by "declaring English the official language of the State and requiring English to be used to perform official acts"?; (2) Do public employees have "a Free Speech right to disregard the [State's] official language" and perform official actions in a language other than English? This Court granted the petition and requested the parties to brief as threshold matters (1) the standing of AOE and Park to proceed in this action as defending parties, and (2) Yniguez's continuing satisfaction of the case-or-controversy requirement. 517 U.S. 1102 (1996). III Article III, § 2, of the Constitution confines federal courts to the decision of "Cases" or "Controversies." Standing to sue or defend is an aspect of the case-or-controversy requirement. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663-664 (1993) (standing to sue); Diamond v.Charles, 476 U.S. 54, 56 (1986) (standing to defend on appeal). To qualify as a party with standing to litigate, a person must show, first and foremost, "an invasion of a legally protected interest" that is "concrete and particularized" and "`actual or imminent.' " Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of Wildlife, 504 U. S., at 573-576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess "a direct stake in the outcome." Diamond, 476 U. S., at 62 (quoting Sierra Club v. Morton, 405 U.S. 727, 740 (1972) (internal quotation marks omitted)). The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U. S., at 62. The decision to seek review "is not to be placed in the *65 hands of `concerned bystanders,' " persons who would seize it "as a `vehicle for the vindication of value interests.' " Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements of Article III." Id., at 68. In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasilegislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. See Karcher v. May, 484 U.S. 72, 82 (1987).[20] AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional). AOE also asserts representational or associational standing. An association has standing to sue or defend in such *66 capacity, however, only if its members would have standing in their own right. See Food and Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 551-553 (1996); Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). The requisite concrete injury to AOE members is not apparent. As nonparties in the District Court, AOE's members were not bound by the judgment for Yniguez. That judgment had slim precedential effect, see supra, at 58-59, n. 11,[21] and it left AOE entirely free to invoke Article XXVIII, § 4, the citizen suit provision, in state court, where AOE could pursue whatever relief state law authorized. Nor do we discern anything flowing from Article XXVIII's citizen suit provision—which authorizes suits to enforce Article XXVIII in state court—that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court. We thus have grave doubts whether AOE and Park have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue. See Burke v. Barnes, 479 U.S. 361, 363, 364, n. (1987) (leaving unresolved question of congressional standing because Court determined case was moot). For purposes of that inquiry, we will assume, arguendo, that AOE and Park had standing to place this case before an appellate tribunal. See id. , at 366 (Stevens, J., dissenting) (Court properly assumed standing, even though that matter raised a serious question, in order to analyze mootness issue). We may resolve the question whether *67 there remains a live case or controversy with respect to Yniguez's claim without first determining whether AOE or Park has standing to appeal because the former question, like the latter, goes to the Article III jurisdiction of this Court and the courts below, not to the merits of the case. Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 20-22 (1994). IV To qualify as a case fit for federal-court adjudication, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974)) (internal quotation marks omitted). As a state employee subject to Article XXVIII, Yniguez had a viable claim at the outset of the litigation in late 1988. We need not consider whether her case lost vitality in January 1989 when the Attorney General released Opinion No. I89-009. That opinion construed Article XXVIII to require the expression of "official acts" in English, but to leave government employees free to use other languages "if reasonably necessary to the fair and effective delivery of services" to the public. See App. 71, 74; supra, at 52-53, 54; see also Marston's Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P.2d 244, 248 (1982) ("Attorney General opinions are advisory only and are not binding on the court. . . . This does not mean, however, that citizens may not rely in good faith on Attorney General opinions until the courts have spoken."). Yniguez left her state job in April 1990 to take up employment in the private sector, where her speech was not governed by Article XXVIII. At that point, it became plain that she lacked a still vital claim for prospective relief. Cf. Boyle v. Landry, 401 U.S. 77, 78, 80-81 (1971) (prospective relief denied where plaintiffs failed to show challenged measures adversely affected any plaintiff's primary conduct). *68 The Attorney General suggested mootness,[22] but Yniguez resisted, and the Ninth Circuit adopted her proposed method of saving the case. See supra, at 60-61.[23] It was not dispositive, the court said, that Yniguez "may no longer be affected by the English only provision," 975 F.2d, at 647, for Yniguez had raised in response to the mootness suggestion "[t]he possibility that [she] may seek nominal damages," ibid.; see App. 197-200 (Appellee Yniguez's Response Regarding Mootness Considerations). At that stage of the litigation, however, Yniguez's plea for nominal damages was not the possibility the Ninth Circuit imagined. Yniguez's complaint rested on 42 U.S. C. § 1983. See supra, at 49-50, and n. 3. Although Governor Mofford in her official capacity was the sole defendant against whom the *69 District Court's February 1990 declaratory judgment ran, see supra, at 55, the Ninth Circuit held the State answerable for the nominal damages Yniguez requested on appeal. See 69 F.3d, at 948-949 (declaring Yniguez "entitled to nominal damages for prevailing in an action under 42 U.S. C. § 1983" and noting that "[t]he State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages"). We have held, however, that § 1983 actions do not lie against a State. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that § 1983 creates no remedy against a State.[24] Furthermore, under the Ninth Circuit's ruling on intervention, the State of Arizona was permitted to participate in the appeal, but not as a party. 939 F.3d, at 738-740. The Court of Appeals never revised that ruling. To recapitulate, *70 in July 1991, two months prior to the Attorney General's suggestion of mootness, the Court of Appeals rejected the Attorney General's plea for party status, as representative of the State. Ibid. The Ninth Circuit accorded the Attorney General the "right [under 28 U.S. C. § 2403(b)] to argue the constitutionality of Article XXVIII . . . contingent upon AOE and Park's bringing the appeal." Id., at 740; see supra, at 59. But see Maine v. Taylor, 477 U.S. 131, 136-137 (1986) (State's § 2403(b) right to urge on appeal the constitutionality of its laws is not contingent on participation of other appellants). AOE and Park, however, were the sole participants recognized by the Ninth Circuit as defendants-appellants. The Attorney General "ha[d] asked the district court to dismiss him as a party," the Court of Appeals noted, hence he "cannot now become one again." 939 F.2d, at 740. While we do not rule on the propriety of the Ninth Circuit's exclusion of the State as a party, we note this lapse in that court's accounting for its decision: The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nevertheless, to an obligation to pay damages. True, Yniguez and the Attorney General took the steps the Ninth Circuit prescribed: Yniguez filed a cross-appeal notice, see supra, at 61; the Attorney General waived the State's right to assert the Eleventh Amendment as a defense to an award of nominal damages, see 69 F.3d, at 948-949. But the earlier, emphatic Court of Appeals ruling remained in place: The State's intervention, although proper under § 2403(b), the Ninth Circuit maintained, gave Arizona no status as a party in the lawsuit. See 939 F.2d, at 738-740.[25] *71 In advancing cooperation between Yniguez and the Attorney General regarding the request for and agreement to pay nominal damages, the Ninth Circuit did not home in on the federal courts' lack of authority to act in friendly or feigned proceedings. Cf. United States v.Johnson, 319 U.S. 302, 304 (1943) (per curiam) (absent "a genuine adversary issue between . . . parties," federal court "may not safely proceed to judgment"). It should have been clear to the Court of Appeals that a claim for nominal damages, extracted late in the day from Yniguez's general prayer for relief and asserted solely to avoid otherwise certain mootness, bore close inspection. Cf. Fox v. Board of Trustees of State Univ. of N. Y., 42 F.3d 135, 141-142 (CA2 1994) (rejecting claim for nominal damages proffered to save case from mootness years after litigation began where defendants could have asserted qualified immunity had plaintiffs' complaint specifically requested monetary relief). On such inspection, the Ninth Circuit might have perceived that Yniguez's plea for nominal damages could not genuinely revive the case.[26] When a civil case becomes moot pending appellate adjudication, "[t]he established practice . . . in the federal system. . . is to reverse or vacate the judgment below and remand with a direction to dismiss." United States v.Munsingwear, Inc., 340 U.S. 36, 39 (1950). Vacatur "clears the path for future relitigation" by eliminating a judgment the loser was stopped from opposing on direct review. Id., at 40. Vacatur is in order when mootness occurs through happenstance—circumstances not attributable to the parties—or, *72 relevant here, the "unilateral action of the party who prevailed in the lower court." U. S. Bancorp Mortgage Co., 513 U. S., at 23; cf. id., at 29 ("mootness by reason of settlement [ordinarily] does not justify vacatur of a judgment under review"). As just explained, Yniguez's changed circumstances—her resignation from public sector employment to pursue work in the private sector—mooted the case stated in her complaint.[27] We turn next to the effect of that development on the judgments below. Yniguez urges that vacatur ought not occur here. She maintains that the State acquiesced in the Ninth Circuit's judgment and that, in any event, the District Court judgment should not be upset because it was entered before the mooting event occurred and was not properly appealed. See Brief for Respondent Yniguez 23-25. Concerning the Ninth Circuit's judgment, Yniguez argues that the State's Attorney General effectively acquiesced in that court's dispositions when he did not petition for this Court's review. See id., at 24-25; Brief for United States as Amicus Curiae 10-11, and n. 4 (citing Diamond v. Charles, 476 U.S. 54 (1986)).[28] We do not agree that this Court is disarmed in the manner suggested. *73 We have taken up the case for consideration on the petition for certiorari filed by AOE and Park. Even if we were to rule definitively that AOE and Park lack standing, we would have an obligation essentially to search the pleadings on core matters of federal-court adjudicatory authority—to inquire not only into this Court's authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed. As explained in Bender v. Williamsport Area School Dist. , 475 U.S. 534 (1986): "[E]very federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 (1934). See Juidice v. Vail, 430 U.S. 327, 331-332 (1977) (standing). `And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.' United States v. Corrick, 298 U.S. 435, 440 (1936) (footnotes omitted)." Id., at 541 (brackets in original). See also Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 72-73 (1983) (per curiam) (vacating judgment below where Court of Appeals had ruled on the merits although case had become moot). In short, we have authority to "make such disposition of the whole case as justice may require." U. S. Bancorp Mortgage Co. , 513 U. S., at 21 (citation and internal quotation marks omitted). Because the Ninth Circuit refused to stop the adjudication when Yniguez's departure from public employment came to its attention, we set aside the unwarranted en banc Court of Appeals judgment. *74 As to the District Court's judgment, Yniguez stresses that the date of the mooting event—her resignation from state employment effective April 25, 1990—was some 2[1]20442 months after the February 6, 1990, decision she seeks to preserve. Governor Mofford was the sole defendant bound by the District Court judgment, and Mofford declined to appeal. Therefore, Yniguez contends, the District Court's judgment should remain untouched. But AOE and Park had an arguable basis for seeking appellate review, and the Attorney General promptly made known his independent interest in defending Article XXVIII against the total demolition declared by the District Court. First, the Attorney General repeated his plea for certification of Article XXVIII to the Arizona Supreme Court. See Record, Doc. No. 82. And if that plea failed, he asked, in his motion to intervene, "to be joined as a defendant so that he may participate in all post-judgment proceedings." Record, Doc. No. 93, p. 2. Although denied party status, the Attorney General had, at a minimum, a right secured by Congress, a right to present argument on appeal "on the question of constitutionality." See 28 U.S. C. § 2403(b). He was in the process of pursuing that right when the mooting event occurred. We have already recounted the course of proceedings thereafter. First, Yniguez did not tell the Court of Appeals that she had left the State's employ. See supra, at 68, n. 23. When that fact was disclosed to the court by the Attorney General, a dismissal for mootness was suggested, and rejected. A mootness disposition at that point was in order, we have just explained. Such a dismissal would have stopped in midstream the Attorney General's endeavor, premised on § 2403(b), to defend the State's law against a declaration of unconstitutionality, and so would have warranted a path-clearing vacatur decree. The State urges that its current plea for vacatur is compelling in view of the extraordinary course of this litigation. *75 See Brief for Respondents State of Arizona et al. 34 ("It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the] judgment."). We agree. The "exceptional circumstances" that abound in this case, see U. S. Bancorp Mortgage Co. , 513 U. S., at 29, and the federalism concern we next consider, lead us to conclude that vacatur down the line is the equitable solution. V In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?[29] When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of that core question. See, e. g., Poe v. Ullman, 367 U.S. 497, 526 (1961) (Harlan, J., dissenting) ("[N]ormally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts."); Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 573-574 (1947); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 580-585 (1985). Arizona's Attorney General, in addition to releasing his own opinion on the meaning of Article XXVIII, see supra, at 52, asked both the District Court and the Court of Appeals to pause before proceeding to judgment; specifically, he asked both federal courts to seek, through the State's certification process, an authoritative construction of the new measure from the Arizona Supreme Court. See supra, at 51, and n. 5, 55, 62-63, and nn. 17, 18. Certification today covers territory once dominated by a deferral device called "Pullman abstention," after the generative *76 case, Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941). Designed to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the state courts for adjudication of the unsettled state-law issues. If settlement of the state-law question did not prove dispositive of the case, the parties could return to the federal court for decision of the federal issues. Attractive in theory because it placed state-law questions in courts equipped to rule authoritatively on them, Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal court. See generally 17A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§ 4242, 4243 (2d ed. 1988 and Supp. 1996). Certification procedure, in contrast, allows a federal court faced with a novel state-law question to put the question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response. See Note, Federal Courts—Certification Before Facial Invalidation: A Return to Federalism, 12 W. New Eng. L. Rev. 217 (1990). Most States have adopted certification procedures. See generally 17A Wright, Miller, & Cooper, supra, § 4248. Arizona's statute, set out supra, at 51, n. 5, permits the State's highest court to consider questions certified to it by federal district courts, as well as courts of appeals and this Court. Both lower federal courts in this case refused to invite the aid of the Arizona Supreme Court because they found the language of Article XXVIII "plain," and the Attorney General's limiting construction unpersuasive. See 730 F. Supp., at 315-316; 69 F. 3d, at 928-931.[30] Furthermore, the Ninth *77 Circuit suggested as a proper price for certification a concession by the Attorney General that Article XXVIII "would be unconstitutional if construed as [plaintiff Yniguez] contended it should be." Id., at 930; see id., at 931, and n. 14. Finally, the Ninth Circuit acknowledged the pendency of a case similar to Yniguez's in the Arizona court system, but found that litigation no cause for a stay of the federal-court proceedings. See id., at 931; supra, at 62-63, and n. 18 (describing the Ruiz litigation). A more cautious approach was in order. Through certification of novel or unsettled questions of state law for authoritative answers by a State's highest court, a federal court may save "time, energy, and resources and hel[p] build a cooperative judicial federalism." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974); see also Bellotti v. Baird, 428 U.S. 132, 148 (1976) (to warrant district court certification, "[i]t is sufficient that the statute is susceptible of . . . an interpretation [that] would avoid or substantially modify the federal constitutional challenge to the statute"). It is true, as the Ninth Circuit observed, 69 F.3d, at 930, that in our decision certifying questions in Virginia v. American Booksellers Assn., Inc., 484 U.S. 383 (1988), we noted the State's concession that the statute there challenged would be unconstitutional if construed as plaintiffs contended it should be, id., at 393-396. But neither in that case nor in any other did we declare such a concession a condition precedent to certification. The District Court and the Court of Appeals ruled out certification primarily because they believed Article XXVIII was not fairly subject to a limiting construction. See 730 F. Supp., at 316 (citing Houston v. Hill, 482 U.S. 451, 467 (1987)); 69 F.3d, at 930. The assurance with which the lower courts reached that judgment is all the more puzzling *78 in view of the position the initiative sponsors advanced before this Court on the meaning of Article XXVIII. At oral argument on December 4, 1996, counsel for petitioners AOE and Park informed the Court that, in petitioners' view, the Attorney General's reading of the Article was "the correct interpretation." Tr. of Oral Arg. 6; see id., at 5 (in response to the Court's inquiry, counsel for petitioners stated: "[W]e agree with the Attorney General's opinion as to [the] construction of Article XXVIII on [constitutional] grounds."). The Ninth Circuit found AOE's "explanations as to the initiative's scope . . . confused and selfcontradictory," 69 F.3d, at 928, n. 12, and we agree that AOE wavered in its statements of position, see, e. g., Brief for Petitioners 15 (AOE may "protect its political and statutory rights against the State and government employees"), 32-39 (Article XXVIII regulates Yniguez's "language on the job"), 44 ("AOE might . . . sue the State for limiting Art. XXVIII"). Nevertheless, the Court of Appeals understood that the ballot initiative proponents themselves at least "partially endorsed the Attorney General's reading." 69 F.3d, at 928, n. 12. Given the novelty of the question and its potential importance to the conduct of Arizona's business, plus the views of the Attorney General and those of Article XXVIII's sponsors, the certification requests merited more respectful consideration than they received in the proceedings below. Federal courts, when confronting a challenge to the constitutionality of a federal statute, follow a "cardinal principle": They "will first ascertain whether a construction . . . is fairly possible" that will contain the statute within constitutional bounds. See Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring); Ellis v. Railway Clerks, 466 U.S. 435, 444 (1984); Califano v. Yamasaki, 442 U.S. 682, 692-693 (1979); Rescue Army, 331 U. S., at 568-569. State courts, when interpreting state statutes, are similarly equipped to apply that cardinal principle. See Knoell v. Cerkvenik- *79 Anderson Travel, Inc., 185 Ariz. 546, 548, 917 P.2d 689, 691 (1996) (citing Ashwander ). Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court. See Rescue Army, 331 U. S., at 573-574. "Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when . . . the state courts stand willing to address questions of state law on certification from a federal court." Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 510 (1985) (O'Connor, J., concurring). Blending abstention with certification, the Ninth Circuit found "no unique circumstances in this case militating in favor of certification." 69 F.3d, at 931. Novel, unsettled questions of state law, however, not "unique circumstances," are necessary before federal courts may avail themselves of state certification procedures.[31] Those procedures do not entail the delays, expense, and procedural complexity that generally attend abstention decisions. See supra, at 76. Taking advantage of certification made available by a State may "greatly simplif[y]" an ultimate adjudication in federal court. See Bellotti, 428 U. S., at 151. The course of Yniguez's case was complex. The complexity might have been avoided had the District Court, more than eight years ago, accepted the certification suggestion made by Arizona's Attorney General. The Arizona Supreme Court was not asked by the District Court or the Court of Appeals to say what Article XXVIII means. But the State's highest court has that very question before it in *80 Ruiz v. Symington, see supra, at 62-63, and n. 18, the case the Ninth Circuit considered no cause for federal-court hesitation. In Ruiz, which has been stayed pending our decision in this case, see supra, at 63, n. 18, the Arizona Supreme Court may now rule definitively on the proper construction of Article XXVIII. Once that court has spoken, adjudication of any remaining federal constitutional question may indeed become greatly simplified. * * * For the reasons stated, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with directions that the action be dismissed by the District Court. It is so ordered. APPENDIX TO OPINION OF THE COURT ARTICLE XXVIII. ENGLISH AS THE OFFICIAL LANGUAGE § 1. English as the official language; applicability Section 1. (1) The English language is the official language of the State of Arizona. (2) As the official language of this State, the English language is the language of the ballot, the public schools and all government functions and actions. (3)(a) This Article applies to: (i) the legislative, executive and judicial branches of government[,] (ii) all political subdivisions, departments, agencies, organizations, and instrumentalities of this State, including local governments and municipalities, (iii) all statutes, ordinances, rules, orders, programs and policies[,] (iv) all government officials and employees during the performance of government business. *81 (b) As used in this Article, the phrase "This State and all political subdivisions of this State" shall include every entity, person, action or item described in this Section, as appropriate to the circumstances. § 2. Requiring this state to preserve, protect and enhance English Section 2. This State and all political subdivisions of this State shall take all reasonable steps to preserve, protect and enhance the role of the English language as the official language of the State of Arizona. § 3. Prohibiting this state from using or requiring the use of languages other than English; exceptions Section 3. (1) Except as provided in Subsection (2): (a) This State and all political subdivisions of this State shall act in English and in no other language. (b) No entity to which this Article applies shall make or enforce a law, order, decree or policy which requires the use of a language other than English. (c) No governmental document shall be valid, effective or enforceable unless it is in the English language. (2) This State and all political subdivisions of this State may act in a language other than English under any of the following circumstances: (a) to assist students who are not proficient in the English language, to the extent necessary to comply with federal law, by giving educational instruction in a language other than English to provide as rapid as possible a transition to English. (b) to comply with other federal laws. (c) to teach a student a foreign language as a part of a required or voluntary educational curriculum. (d) to protect public health or safety. (e) to protect the rights of criminal defendants or victims of crime. *82 § 4. Enforcement; standing Section 4. A person who resides in or does business in this State shall have standing to bring suit to enforce this Article in a court of record of the State. The Legislature may enact reasonable limitations on the time and manner of bringing suit under this subsection.

Federal courts lack competence to rule definitively on the meaning of state legislation, see, e. g., nor may they adjudicate challenges to state measures absent a showing of actual impact on the challenger, see, e. g., The Ninth Circuit, in the case at hand, lost sight of these limitations. The initiating plaintiff, Maria-Kelly F. Yniguez, sought federal-court resolution of a novel question: the compatibility with the Federal Constitution of a 1988 amendment to Arizona's Constitution declaring English "the official language of the State of Arizona"—"the language of. all government functions and actions." Ariz. Const., Art. XXVIII, 1(1), 1(2). Participants in the federal litigation, proceeding with benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment. Yniguez commenced and maintained her suit as an individual, not as a class representative. A state employee at the time she filed her complaint, Yniguez voluntarily left the State's employ in 1990 and did not allege she would seek to return to a public post. Her departure for a position in the private sector made her claim for prospective relief moot. Nevertheless, the Ninth Circuit held that a plea for nominal damages could be read into Yniguez's complaint to save the case, and therefore pressed on to an ultimate decisio A three-judge panel of the Court of Appeals declared Article XXVIII unconstitutional in and a divided en banc court, in adhered to the panel's positio The Ninth Circuit had no warrant to proceed as it d The case had lost the essential elements of a justiciable controversy and should not have been retained for adjudication on the merits by the Court of Appeals. We therefore *49 vacate the Ninth Circuit's judgment, and remand the case to that court with directions that the action be dismissed by the District Court. We express no view on the correct interpretation of Article XXVIII or on the measure's constitutionality. I A 1988 Arizona ballot initiative established English as the official language of the State. Passed on November 8, 1988, by a margin of one percentage point,[1] the measure became effective on December 5 as Arizona State Constitution Article XXVIII. Among key provisions, the Article declares that, with specified exceptions, the State "shall act in English and in no other language." Ariz. Const., Art. XXVIII, 3(1)(a). The enumerated exceptions concern compliance with federal laws, participation in certain educational programs, protection of the rights of criminal defendants and crime victims, and protection of public health or safety. 3(2). In a final provision, Article XXVIII grants standing to any person residing or doing business in the State "to bring suit to enforce th[e] Article" in state court, under such "reasonable limitations" as "[t]he Legislature may enact." 4.[2] Federal-court litigation challenging the constitutionality of Article XXVIII commenced two days after the ballot initiative passed. On November 10, 1988, Maria-Kelly F. Yniguez, then an insurance claims manager in the Arizona Department of Administration's Risk Management Division, sued the State of Arizona in the United States District Court for the District of Arizona. Yniguez invoked 42 U.S. C. *50 1983 as the basis for her suit.[3] Soon after the lawsuit commenced, Yniguez added as defendants, in their individual and official capacities, Arizona Governor Rose Mofford, Arizona Attorney General Robert K. Corbin, and the Director of Arizona's Department of Administration, Catherine Ede Yniguez brought suit as an individual and never sought designation as a class representative. Fluent in English and Spanish, Yniguez was engaged primarily in handling medical malpractice claims against the State. In her daily service to the public, she spoke English to persons who spoke only that language, Spanish to persons who spoke only that language, and a combination of English and Spanish to persons able to communicate in both languages. Record, Doc. No. 62, ¶¶ 8, 13 Yniguez feared that Article XXVIII's instruction to "act in English," 3(1)(a), if read broadly, would govern her job performance "every time she [did] something." See Record, Doc. No. 62, ¶ 10. She believed she would lose her job or face other sanctions if she did not immediately refrain from speaking Spanish while serving the State. See App. 58, ¶ 19 (Second Amended Complaint). Yniguez asserted that Article XXVIII violated the First and Fourteenth Amendments to the United States Constitution and Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d. She requested injunctive and declaratory relief, counsel fees, and "all other relief that the *51 Court deems just and proper under the circumstances." App. 60. All defendants named in Yniguez's complaint moved to dismiss all claims asserted against them.[4] The State of Arizona asserted immunity from suit under the Eleventh Amendment. The individual defendants asserted the absence of a case or controversy because "none of [them] ha[d] threatened [Yniguez] concerning her use of Spanish in the performance of her job duties [or had] ever told her not to use Spanish [at work]." Record, Doc. No. 30, p. 1. The defendants further urged that novel state-law questions concerning the meaning and application of Article XXVIII should be tendered first to the state courts. See[5] Trial on the merits of Yniguez's complaint, the parties agreed, would be combined with the hearing on her motion for a preliminary injunctio[6] Before the trial occurred, the State Attorney General, on January 24, 1989, released an opinion, No. I89-009, construing Article XXVIII and explaining why he found the measure constitutional. App. 61-76. *52 In Opinion No. I89-009, the Attorney General said it was his obligation to read Article XXVIII "as a whole," in line "with the other portions of the Arizona Constitution" and "with the United States Constitution and federal laws." App. 61. While Article XXVIII requires the performance of "official acts of government" in English, it was the Attorney General's view that government employees remained free to use other languages "to facilitate the delivery of governmental services." Construction of the word "act," as used in Article XXVIII, to mean more than an "official ac[t] of government," the Attorney General asserted, "would raise serious questions" of compatibility with federal and state equal protection guarantees and federal civil rights legislatio[7] On February 9, 1989, two weeks after release of the Attorney General's opinion, the parties filed a statement of stipulated facts, which reported Governor Mofford's opposition to the ballot initiative, her intention nevertheless "to comply with Article XXVIII," and her expectation that "State service employees [would] comply" with the measure. See Record, Doc. No. 62, ¶¶ 35, 36, The stipulation confirmed the view of all parties that "[t]he efficient operation [and administration] of the State is enhanced by permitting State service employees to communicate with citizens of the State in languages other than English where the citizens are not proficient in English." In particular, the parties recognized that "Yniguez'[s] use of a language other *53 than English in the course of her performing government business contributes to the efficient operationand administration of the State." The stipulation referred to the Attorney General's January 24, 1989, opinion, and further recounted that since the passage of Article XXVIII, "none of [Yniguez's] supervisors ha[d] ever told her to change or cease her prior use of Spanish in the performance of her duties,"[8] The District Court heard testimony on two days in February and April 1989, and disposed of the case in an opinion and judgment filed February 6, 1990. Prior to that final decision, the court had dismissed the State of Arizona as a defendant, accepting the State's plea of Eleventh Amendment immunity. See Yniguez's second amended complaint, filed February 23, 1989, accordingly named as defendants only the Governor, the Attorney General, and the Director of the Department of Administratio See App. 55.[9] The District Court determined first that, among the named defendants, only the Governor, in her official capacity, was a proper The Attorney General, the District Court found, had no authority under Arizona law to enforce provisions like Article XXVIII against state 730 F. Supp., -312. The Director and the Governor, *54 on the other hand, did have authority to enforce state laws and rules against state service But nothing in the record, the District Court said, showed that the Director had undertaken or threatened to undertake any action adverse to Yniguez. That left Governor Mofford. The Attorney General "ha[d] formally interpreted Article XXVIII as not imposing any restrictions on Yniguez's continued use of Spanish during the course of her official duties," and indeed all three named defendants— Mofford as well as Corbin and Eden, see 0—"ha[d] stated on the record that Yniguez may continue to speak Spanish with fear of official retributio" 730 F. Supp., Governor Mofford therefore reiterated that Yniguez faced no actual or threatened injury attributable to any Arizona executive branch officer, and hence presented no genuine case or controversy. See But the District Court singled the stipulations that "Governor Mofford intends to comply with Article XXVIII," and "expects State service employees to comply with Article XXVIII." Record, Doc. No. 62, ¶¶ 35, 36; see 730 F. Supp., If Yniguez proved right and the Governor wrong ab the breadth of Article XXVIII, the District Court concluded, then Yniguez would be vulnerable to the Governor's pledge to enforce compliance with the Article. See Proceeding to the merits, the District Court found Article XXVIII fatally overbroad. The measure, as the District Court read it, was not merely a direction that all official acts be in English, as the Attorney General's opinion maintained; instead, according to the District Court, Article XXVIII imposed a sweeping ban on the use of any language other than English by all of Arizona officialdom, with only limited exceptions. The District Court adverted to the Attorney General's confining construction, but found it unpersuasive. Opinion No. 189-009, the District Court is "merely advisory," not binding on any *55 "More importantly," the District Court concluded, "the Attorney General's interpretation is simply at odds with Article XXVIII's plain language." The view that Article XXVIII's text left no room for a moderate and restrained interpretation led the District Court to decline "to allow the Arizona courts the initial opportunity to determine the scope of Article XXVIII." The District Court ultimately dismissed all parties save Yniguez and Governor Mofford in her official capacity, then declared Article XXVIII unconstitutional as violative of the First and Fourteenth Amendments, but denied Yniguez's request for an injunction because "she ha[d] not established an enforcement threat sufficient to warrant [such] relief." -317. Postjudgment motions followed, sparked by Governor Mofford's announcement that she would not pursue an appeal. See App. 98. The Attorney General renewed his request to certify the pivotal state-law question—the correct construction of Article XXVIII—to the Arizona Supreme Court. See Record, Doc. No. He also moved to intervene on behalf of the State, pursuant to 28 U.S. C. 2403(b),[10] in order to contest on appeal the District Court's declaration that a provision of Arizona's Constitution violated the Federal Constitutio Record, Doc. Nos. 92, 93. * Two newcomers also appeared in the District Court after judgment: the Arizonans for Official English Committee (AOE) and Robert D. Park, Chairman of AOE. Invoking Rule 24 of the Federal Rules of Civil Procedure, AOE and Park moved to intervene as defendants in order to urge on appeal the constitutionality of Article XXVIII. App. — 102. AOE, an unincorporated association, was principal sponsor of the ballot initiative that became Article XXVIII. AOE and Park alleged in support of their intervention motion the interest of AOE members in enforcement of Article XXVIII and Governor Mofford's unwillingness to defend the measure on appeal. Responding to the AOE/Park motion, Governor Mofford confirmed that she did not wish to appeal, but would have no objection to the Attorney General's intervention to pursue an appeal as the State's representative, or to the pursuit of an appeal by any other See Record, Doc. No. Yniguez expressed reservations ab proceeding further. "She ha[d] won [her] suit against her employer" and had "obtained her relief," her counsel noted. Record, Doc. No. 114, p. 18 If the litigation "goes forward," Yniguez's counsel told the District Court, "I guess we do, too," but, counsel added, it might be in Yniguez's "best interest if we stopped it right here." The District Court agreed. In an opinion filed April 3, 1990, the District Court denied all three postjudgment motions. 130 F. R. D. 410. Certification was inappropriate, the District Court ruled, in light of the court's prior rejection of the Attorney General's narrow reading of Article XXVIII. See at 412. As to the Attorney General's intervention application, the District Court that 2403(b) addresses only actions "`to which the State or any agency, officer, or employee thereof is not a ' " See ( 2403(b)). Yniguez's action did not fit the 2403(b) description, *57 the District Court said, because the State and its officers were the very defendants—the sole defendants— Yniguez's complaint named. Governor Mofford remained a party through the District Court proceedings. If the State lost the opportunity to defend the constitutionality of Article XXVIII on appeal, the District Court reasoned, it was "only because Governor Mofford determine[d] that the state's sovereign interests would be best served by foregoing an appeal." Turning to the AOE/Park intervention motion, the District Court first that the movants had failed to file a pleading "setting forth the[ir] claim or defense," as required by Rule 24(c). But that deficiency was not critical, the District Court sa The insurmountable hurdle was Article III standing. The labor and resources AOE spent to promote the ballot initiative did not suffice to establish standing to sue or defend in a federal tribunal, the District Court held. Nor did Park or any other AOE member qualify for party status, the District Court ruled, for the interests of voters who favored the initiative were too general to meet traditional standing criteria. at 415. In addition, the District Court was satisfied that AOE and Park could not tenably assert practical impairment of their interests stemming from the precedential force of the decisio As nonparticipants in the federal litigation, they would face no issue preclusio And a lower federal-court judgment is not binding on state courts, the District Court noted. Thus, AOE and Park would not be precluded by the federal declaration from pursuing "any future state court proceeding [based on] Article XXVIII." at 415-416. II The Ninth Circuit viewed the matter of standing to appeal differently. In an opinion released July 19, 1991, the Court of Appeals reached these *58 conclusions: AOE and Park met Article III requirements and could proceed as appellants; Arizona's Attorney General, however, having successfully moved in the District Court for his dismissal as a defendant, could not reenter as a party, but would be permitted to present argument regarding the constitutionality of Article XXVIII. The Ninth Circuit reported it would retain jurisdiction over the District Court's decision on the merits, at but did not then address the question whether Article XXVIII's meaning should be certified for definitive resolution by the Arizona Supreme Court. Concerning AOE's standing, the Court of Appeals reasoned that the Arizona Legislature would have standing to defend the constitutionality of a state statute; by analogy, the Ninth Circuit maintained, AOE, as principal sponsor of the ballot initiative, qualified to defend Article XXVIII on appeal. ; see also at 734, 5 ("[W]e hold that AOE has standing in the same way that a legislature might."). AOE Chairman Park also had standing to appeal, according to the Ninth Circuit, because Yniguez "could have had a reasonable expectation that Park (and possibly AOE as well) would bring an enforcement action against her" under 4 of Article XXVIII, which authorizes any person residing in Arizona to sue in state court to enforce the Article. at 734, and 5.[11] *59 Having allowed AOE and Park to serve as appellants, the Court of Appeals held Arizona's Attorney General "judicial[ly] estoppe[d]" from again appearing as a at 738-7; see also at ("[H]aving asked the district court to dismiss him as a party, [the Attorney General] cannot now become one agai").[12] With Governor Mofford choosing not to seek Court of Appeals review, the appeal became one to which neither "[the] State [n]or any agency, officer, or employee thereof [was] a party," the Ninth Circuit so the State's Attorney General could appear pursuant to 28 U.S. C. 2403(b). See[13] But, the Ninth Circuit added, 2403(b) "confers only a limited right," a right pendent to the AOE/Park appeal, "to make an argument on the question of [Article XXVIII's] constitutionality." Prior to the Ninth Circuit's July 1991 opinion, indeed the very day after AOE, Park, and the Arizona Attorney General filed their notices of appeal, a development of prime importance occurred. On April 10, 1990, Yniguez resigned from state employment in order to accept another job. Her resignation *60 apparently became effective on April 25, 1990. Arizona's Attorney General so informed the Ninth Circuit in September 1991, "suggest[ing] that this case may lack a viable plaintiff and, hence, may be moot." Suggestion of Mootness in Nos. 90-46 and 90-81 (CA9), Affidavit and Exh. A. One year later, on September 16, 1992, the Ninth Circuit rejected the mootness suggestio The court's ruling adopted in large part Yniguez's argument opposing a mootness dispositio See App. 1-204 (Appellee Yniguez's Response Regarding Mootness Considerations). "[T]he plaintiff may no longer be affected by the English only provision," the Court of Appeals Nevertheless, the court continued, "[her] constitutional claims may entitle her to an award of nominal " Her complaint did "not expressly request nominal damages," the Ninth Circuit noted, but "it did request `all other relief that the Court deems just and proper under the circumstances.' " at 647, 1; see Thus, the Court of Appeals reasoned, one could regard the District Court's judgment as including an "implicit denial" of nominal 2. To permit Yniguez and AOE to clarify their positions, the Ninth Circuit determined to return the case to the District Court. There, with the Ninth Circuit's permission, AOE's Chairman Park could file a notice of appeal from the District Court's judgment, following up the Circuit's decision 14 months earlier allowing AOE and Park to intervene. at 647.[14] And next, Yniguez could cross-appeal to place before *61 the Ninth Circuit, explicitly, the issue of nominal at 647, and 2.[15] In line with the Ninth Circuit's instructions, the case file was returned to the District Court on November 5, 1992; AOE and Park filed their second notice of appeal on December 3, App. 206-208, and Yniguez cross-appealed on December 15, App. 209.[16] The Ninth Circuit heard argument on the merits on May 3, After argument, on June 21, the Ninth Circuit allowed Arizonans Against Constitutional Tampering (AACT) and Thomas Espinosa, Chairman of AACT, to intervene as plaintiffs-appellees. App. 14; AACT was the principal opponent of the ballot initiative that became Article XXVIII. In permitting this late intervention, the Court of Appeals noted that "it d[id] not rely on [AACT's] standing as a " The standing of the preargument participants, in the Ninth Circuit's view, sufficed to support a determination on the merits. See In December the Ninth Circuit panel that had superintended the case since 1990 affirmed the judgment declaring Article XXVIII unconstitutional and remanded the case, directing the District Court to award Yniguez nominal *62 Despite the Court of Appeals' July 1991 denial of party status to Arizona, the Ninth Circuit apparently viewed the State as the defendant responsible for any damages, for it noted: "The State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal " at 1243. The Ninth Circuit agreed to rehear the case en banc, and in October by a 6-to-5 vote, the en banc court reinstated the panel opinion with minor alterations. Adopting the District Court's construction of Article XXVIII, the en banc court read the provision to prohibit "`the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in 3(2) of Article XXVIII.' " ( 730 F. Supp., ). Because the court found the "plain language" it rejected the State Attorney General's limiting construction and declined to certify the matter to the Arizona Supreme Court, As an additional reason for its refusal to grant the Attorney General's request for certification, the en banc court stated: "The Attorney General never conceded that [Article XXVIII] would be unconstitutional if construed as Yniguez asserts it properly should be." and 14.[17] The Ninth Circuit also pointed to a state-court challenge to the constitutionality of *63 Article XXVIII, Ruiz v. State, No. CV92-19603 In Ruiz, the Ninth Circuit the state court of first instance "dispos[ed] of [the] First Amendment challenge in three paragraphs" and "d[id] nothing to narrow [the provision]." 69 F.3d,[18] After construing Article XXVIII as sweeping in scope, the en banc Court of Appeals condemned the provision as manifestly overbroad, trenching untenably on speech rights of Arizona officials and public See -8. For prevailing in the 1983 action, the court ultimately announced, Yniguez was "entitled to nominal " On remand, the District Court followed the en banc Court of Appeals' order and, on November 3, awarded Yniguez $1 in App. 211. AOE and Park petitioned this Court for a writ of certiorari to the Ninth Circuit.[19] They raised two questions: (1) Does Article XXVIII violate the Free Speech Clause of the First *64 Amendment by "declaring English the official language of the State and requiring English to be used to perform official acts"?; (2) Do public employees have "a Free Speech right to disregard the [State's] official language" and perform official actions in a language other than English? This Court granted the petition and requested the parties to brief as threshold matters (1) the standing of AOE and Park to proceed in this action as defending parties, and (2) Yniguez's continuing satisfaction of the case-or-controversy requirement. 517 U.S. 2 III Article III, 2, of the Constitution confines federal courts to the decision of "Cases" or "Controversies." Standing to sue or defend is an aspect of the case-or-controversy requirement. Northeastern Fla. Chapter, Associated Ge Contractors of ; v.Charles, To qualify as a party with standing to litigate, a person must show, first and foremost, "an invasion of a legally protected interest" that is "concrete and particularized" and "`actual or imminent.' " 0 ). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of -576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess "a direct stake in the come." 476 U. S., ). The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. 476 U. S., The decision to seek review "is not to be placed in the *65 hands of `concerned bystanders,' " persons who would seize it "as a `vehicle for the vindication of value interests.' " An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements of Article III." In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasilegislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. See[20] AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. Cf. Don't Bankrupt Washington AOE also asserts representational or associational standing. An association has standing to sue or defend in such *66 capacity, however, only if its members would have standing in their own right. See Food and Commercial ; The requisite concrete injury to AOE members is not apparent. As nonparties in the District Court, AOE's members were not bound by the judgment for Yniguez. That judgment had slim precedential effect, see[21] and it left AOE entirely free to invoke Article XXVIII, 4, the citizen suit provision, in state court, where AOE could pursue whatever relief state law authorized. Nor do we discern anything flowing from Article XXVIII's citizen suit provision—which authorizes suits to enforce Article XXVIII in state court—that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal We thus have grave doubts whether AOE and Park have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue. See For purposes of that inquiry, we will assume, arguendo, that AOE and Park had standing to place this case before an appellate tribunal. See at 366 (Stevens, J., dissenting) (Court properly assumed standing, even though that matter raised a serious question, in order to analyze mootness issue). We may resolve the question whether *67 there remains a live case or controversy with respect to Yniguez's claim with first determining whether AOE or Park has standing to appeal because the former question, like the latter, goes to the Article III jurisdiction of this Court and the courts below, not to the merits of the case. Cf. U. S. Bancorp Mortgage IV To qualify as a case fit for federal-court adjudication, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." ) As a state employee subject to Article XXVIII, Yniguez had a viable claim at the set of the litigation in late 1988. We need not consider whether her case lost vitality in January 1989 when the Attorney General released Opinion No. I89-009. That opinion construed Article XXVIII to require the expression of "official acts" in English, but to leave government employees free to use other languages "if reasonably necessary to the fair and effective delivery of services" to the public. See App. 74; ; see also Marston's (19) ("Attorney General opinions are advisory only and are not binding on the This does not mean, however, that citizens may not rely in good faith on Attorney General opinions until the courts have spoke"). Yniguez left her state job in April 1990 to take up employment in the private sector, where her speech was not governed by Article XXVIII. At that point, it became plain that she lacked a still vital claim for prospective relief. Cf. U.S. 77, *68 The Attorney General suggested mootness,[22] but Yniguez resisted, and the Ninth Circuit adopted her proposed method of saving the case. See[23] It was not the court said, that Yniguez "may no longer be affected by the English only provision," for Yniguez had raised in response to the mootness suggestion "[t]he possibility that [she] may seek nominal damages," ; see App. 197-200 (Appellee Yniguez's Response Regarding Mootness Considerations). At that stage of the litigation, however, Yniguez's plea for nominal damages was not the possibility the Ninth Circuit imagined. Yniguez's complaint rested on 42 U.S. C. 1983. See and 3. Although Governor Mofford in her official capacity was the sole defendant against whom the *69 District Court's February 1990 declaratory judgment ran, see the Ninth Circuit held the State answerable for the nominal damages Yniguez requested on appeal. See 69 F.3d, at 8-9 (declaring Yniguez "entitled to nominal damages for prevailing in an action under 42 U.S. C. 1983" and noting that "[t]he State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages"). We have held, however, that 1983 actions do not lie against a State. Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that 1983 creates no remedy against a State.[24] Furthermore, under the Ninth Circuit's ruling on intervention, the State of Arizona was permitted to participate in the appeal, but not as a 9 F.3d, The Court of Appeals never revised that ruling. To recapitulate, *70 in July 1991, two months prior to the Attorney General's suggestion of mootness, the Court of Appeals rejected the Attorney General's plea for party status, as representative of the State. The Ninth Circuit accorded the Attorney General the "right [under 28 U.S. C. 2403(b)] to argue the constitutionality of Article XXVIII contingent upon AOE and Park's bringing the appeal." at ; see But see (State's 2403(b) right to urge on appeal the constitutionality of its laws is not contingent on participation of other appellants). AOE and Park, however, were the sole participants recognized by the Ninth Circuit as defendants-appellants. The Attorney General "ha[d] asked the district court to dismiss him as a party," the Court of Appeals noted, hence he "cannot now become one agai" 9 F.2d, at While we do not rule on the propriety of the Ninth Circuit's exclusion of the State as a party, we note this lapse in that court's accounting for its decision: The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nevertheless, to an obligation to pay True, Yniguez and the Attorney General took the steps the Ninth Circuit prescribed: Yniguez filed a cross-appeal notice, see ; the Attorney General waived the State's right to assert the Eleventh Amendment as a defense to an award of nominal damages, see 69 F.3d, at 8-9. But the earlier, emphatic Court of Appeals ruling remained in place: The State's intervention, although proper under 2403(b), the Ninth Circuit maintained, gave Arizona no status as a party in the lawsuit. See 9 F.2d,[25] * In advancing cooperation between Yniguez and the Attorney General regarding the request for and agreement to pay nominal damages, the Ninth Circuit did not home in on the federal courts' lack of authority to act in friendly or feigned proceedings. Cf. United States v.Johnson, (13) (absent "a genuine adversary issue between parties," federal court "may not safely proceed to judgment"). It should have been clear to the Court of Appeals that a claim for nominal damages, extracted late in the day from Yniguez's general prayer for relief and asserted solely to avoid otherwise certain mootness, bore close inspectio Cf. On such inspection, the Ninth Circuit might have perceived that Yniguez's plea for nominal damages could not genuinely revive the case.[26] When a civil case becomes moot pending appellate adjudication, "[t]he established practice in the federal system. is to reverse or vacate the judgment below and remand with a direction to dismiss." United States v.Munsingwear, Inc., Vacatur "clears the path for future relitigation" by eliminating a judgment the loser was stopped from opposing on direct review. Vacatur is in order when mootness occurs through happenstance—circumstances not attributable to the parties—or, *72 relevant here, the "unilateral action of the party who prevailed in the lower " U. S. Bancorp Mortgage 513 U. S., 3; cf. 9 As just explained, Yniguez's changed circumstances—her resignation from public sector employment to pursue work in the private sector—mooted the case stated in her complaint.[27] We turn next to the effect of that development on the judgments below. Yniguez urges that vacatur ought not occur here. She maintains that the State acquiesced in the Ninth Circuit's judgment and that, in any event, the District Court judgment should not be upset because it was entered before the mooting event occurred and was not properly appealed. See Brief for Respondent Yniguez 23-25. Concerning the Ninth Circuit's judgment, Yniguez argues that the State's Attorney General effectively acquiesced in that court's dispositions when he did not petition for this Court's review. See 4-25; Brief for United States as Amicus Curiae 10-11, and 4 ).[28] We do not agree that this Court is disarmed in the manner suggested. *73 We have taken up the case for consideration on the petition for certiorari filed by AOE and Park. Even if we were to rule definitively that AOE and Park lack standing, we would have an obligation essentially to search the pleadings on core matters of federal-court adjudicatory authority—to inquire not only into this Court's authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed. As explained in : "[E]very federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. See `And if the record discloses that the lower court was with jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.' United" See also Iron Arrow Honor (vacating judgment below where Court of Appeals had ruled on the merits although case had become moot). In short, we have authority to "make such disposition of the whole case as justice may require." U. S. Bancorp Mortgage 513 U. S., 1 Because the Ninth Circuit refused to stop the adjudication when Yniguez's departure from public employment came to its attention, we set aside the unwarranted en banc Court of Appeals judgment. *74 As to the District Court's judgment, Yniguez stresses that the date of the mooting event—her resignation from state employment effective April 25, 1990—was some 2[1]20442 months after the February 6, 1990, decision she seeks to preserve. Governor Mofford was the sole defendant bound by the District Court judgment, and Mofford declined to appeal. Therefore, Yniguez contends, the District Court's judgment should remain untouched. But AOE and Park had an arguable basis for seeking appellate review, and the Attorney General promptly made known his independent interest in defending Article XXVIII against the total demolition declared by the District Court. First, the Attorney General repeated his plea for certification of Article XXVIII to the Arizona Supreme Court. See Record, Doc. No. And if that plea failed, he asked, in his motion to intervene, "to be joined as a defendant so that he may participate in all post-judgment proceedings." Record, Doc. No. 93, p. 2. Although denied party status, the Attorney General had, at a minimum, a right secured by Congress, a right to present argument on appeal "on the question of constitutionality." See 28 U.S. C. 2403(b). He was in the process of pursuing that right when the mooting event occurred. We have already recounted the course of proceedings thereafter. First, Yniguez did not tell the Court of Appeals that she had left the State's employ. See 23. When that fact was disclosed to the court by the Attorney General, a dismissal for mootness was suggested, and rejected. A mootness disposition at that point was in order, we have just explained. Such a dismissal would have stopped in midstream the Attorney General's endeavor, premised on 2403(b), to defend the State's law against a declaration of unconstitutionality, and so would have warranted a path-clearing vacatur decree. The State urges that its current plea for vacatur is compelling in view of the extraordinary course of this litigatio *75 See Brief for Respondents State of Arizona et al. 34 ("It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the] judgment."). We agree. The "exceptional circumstances" that abound in this case, see U. S. Bancorp Mortgage 513 U. S., 9, and the federalism concern we next consider, lead us to conclude that vacatur down the line is the equitable solutio V In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?[29] When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of that core questio See, e. g., ("[N]ormally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts."); Rescue (17); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 580-585 Arizona's Attorney General, in addition to releasing his own opinion on the meaning of Article XXVIII, see asked both the District Court and the Court of Appeals to pause before proceeding to judgment; specifically, he asked both federal courts to seek, through the State's certification process, an authoritative construction of the new measure from the Arizona Supreme Court. See and 5, 55, 62-63, and n 17, 18. Certification today covers territory once dominated by a deferral device called "Pullman abstention," after the generative *76 case, Railroad Comm'n of Tex. v. Pullman (11). Designed to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the state courts for adjudication of the unsettled state-law issues. If settlement of the state-law question did not prove of the case, the parties could return to the federal court for decision of the federal issues. Attractive in theory because it placed state-law questions in courts equipped to rule authoritatively on them, Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal See generally 17A C. Wright, A. Miller, & E. Federal Practice and Procedure 4242, 4243 Certification procedure, in contrast, allows a federal court faced with a novel state-law question to put the question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response. See Note, Federal Courts—Certification Before Facial Invalidation: A Return to Federalism, Most States have adopted certification procedures. See generally 17A Wright, Miller, & 4. Arizona's statute, set 5, permits the State's highest court to consider questions certified to it by federal district courts, as well as courts of appeals and this Court. Both lower federal courts in this case refused to invite the aid of the Arizona Supreme Court because they found the language of Article XXVIII "plain," and the Attorney General's limiting construction unpersuasive. See -316; -931.[30] Furthermore, the Ninth *77 Circuit suggested as a proper price for certification a concession by the Attorney General that Article XXVIII "would be unconstitutional if construed as [plaintiff Yniguez] contended it should be." ; see and 14. Finally, the Ninth Circuit acknowledged the pendency of a case similar to Yniguez's in the Arizona court system, but found that litigation no cause for a stay of the federal-court proceedings. See ; -63, and 18 (describing the Ruiz litigation). A more cautious approach was in order. Through certification of novel or unsettled questions of state law for authoritative answers by a State's highest court, a federal court may save "time, energy, and resources and hel[p] build a cooperative judicial federalism." Lehman 1 ; see also It is true, as the Ninth Circuit 69 F.3d, that in our decision certifying questions in Virginia v. American Booksellers Ass, Inc., we noted the State's concession that the statute there challenged would be unconstitutional if construed as plaintiffs contended it should be, at 3-6. But neither in that case nor in any other did we declare such a concession a condition precedent to certificatio The District Court and the Court of Appeals ruled certification primarily because they believed Article XXVIII was not fairly subject to a limiting constructio See 730 F. Supp., ); 69 F.3d, The assurance with which the lower courts reached that judgment is all the more puzzling *78 in view of the position the initiative sponsors advanced before this Court on the meaning of Article XXVIII. At oral argument on December 4, counsel for petitioners AOE and Park informed the Court that, in petitioners' view, the Attorney General's reading of the Article was "the correct interpretatio" Tr. of Oral Arg. 6; see The Ninth Circuit found AOE's "explanations as to the initiative's scope confused and selfcontradictory," 12, and we agree that AOE wavered in its statements of position, see, e. g., Brief for Petitioners 15 (AOE may "protect its political and statutory rights against the State and government employees"), 32- (Article XXVIII regulates Yniguez's "language on the job"), 44 ("AOE might sue the State for limiting Art. XXVIII"). Nevertheless, the Court of Appeals understood that the ballot initiative proponents themselves at least "partially endorsed the Attorney General's reading." 12. Given the novelty of the question and its potential importance to the conduct of Arizona's business, plus the views of the Attorney General and those of Article XXVIII's sponsors, the certification requests merited more respectful consideration than they received in the proceedings below. Federal courts, when confronting a challenge to the constitutionality of a federal statute, follow a "cardinal principle": They "will first ascertain whether a construction is fairly possible" that will contain the statute within constitutional bounds. See ; ; 442 U.S. 6, ; Rescue 331 U. S., at 8-9. State courts, when interpreting state statutes, are similarly equipped to apply that cardinal principle. See Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest See Rescue 331 U. S., at "Speculation by a federal court ab the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when the state courts stand willing to address questions of state law on certification from a federal " Blending abstention with certification, the Ninth Circuit found "no unique circumstances in this case militating in favor of certificatio" 69 F.3d, Novel, unsettled questions of state law, however, not "unique circumstances," are necessary before federal courts may avail themselves of state certification procedures.[31] Those procedures do not entail the delays, expense, and procedural complexity that generally attend abstention decisions. See Taking advantage of certification made available by a State may "greatly simplif[y]" an ultimate adjudication in federal See The course of Yniguez's case was complex. The complexity might have been avoided had the District Court, more than eight years ago, accepted the certification suggestion made by Arizona's Attorney General. The Arizona Supreme Court was not asked by the District Court or the Court of Appeals to say what Article XXVIII means. But the State's highest court has that very question before it in *80 Ruiz v. Symington, see -63, and 18, the case the Ninth Circuit considered no cause for federal-court hesitatio In Ruiz, which has been stayed pending our decision in this case, see at 63, 18, the Arizona Supreme Court may now rule definitively on the proper construction of Article XXVIII. Once that court has spoken, adjudication of any remaining federal constitutional question may indeed become greatly simplified. * * * For the reasons stated, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with directions that the action be dismissed by the District Court. It is so ordered. APPENDIX TO OPINION OF THE COURT ARTICLE XXVIII. ENGLISH AS THE OFFICIAL LANGUAGE 1. English as the official language; applicability Section 1. (1) The English language is the official language of the State of Arizona. (2) As the official language of this State, the English language is the language of the ballot, the public schools and all government functions and actions. (3)(a) This Article applies to: (i) the legislative, executive and judicial branches of government[,] (ii) all political subdivisions, departments, agencies, organizations, and instrumentalities of this State, including local governments and municipalities, (iii) all statutes, ordinances, rules, orders, programs and policies[,] (iv) all government officials and employees during the performance of government business. *81 (b) As used in this Article, the phrase "This State and all political subdivisions of this State" shall include every entity, person, action or item described in this Section, as appropriate to the circumstances. 2. Requiring this state to preserve, protect and enhance English Section 2. This State and all political subdivisions of this State shall take all reasonable steps to preserve, protect and enhance the role of the English language as the official language of the State of Arizona. 3. Prohibiting this state from using or requiring the use of languages other than English; exceptions Section 3. (1) Except as provided in Subsection (2): (a) This State and all political subdivisions of this State shall act in English and in no other language. (b) No entity to which this Article applies shall make or enforce a law, order, decree or policy which requires the use of a language other than English. (c) No governmental document shall be valid, effective or enforceable unless it is in the English language. (2) This State and all political subdivisions of this State may act in a language other than English under any of the following circumstances: (a) to assist students who are not proficient in the English language, to the extent necessary to comply with federal law, by giving educational instruction in a language other than English to provide as rapid as possible a transition to English. (b) to comply with other federal laws. (c) to teach a student a foreign language as a part of a required or voluntary educational curriculum. (d) to protect public health or safety. (e) to protect the rights of criminal defendants or victims of crime. * 4. Enforcement; standing Section 4. A person who resides in or does business in this State shall have standing to bring suit to enforce this Article in a court of record of the State. The Legislature may enact reasonable limitations on the time and manner of bringing suit under this subsectio

Justice Ginsburg

majority

Burgess v. United States

2008-04-16

https://www.courtlistener.com/opinion/145816/burgess-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145816/

2007-032

For certain federal drug offenses, the Controlled Substances Act mandates a minimum sentence of imprisonment for 10 years. 21 U.S.C. § 841(b)(1)(A). That minimum doubles to 20 years for defendants previously convicted of a "felony drug offense." Ibid. The question in this case is whether a state drug offense classified as a misdemeanor, but punishable by more than one year's imprisonment, is a "felony drug offense" as that term is used in § 841(b)(1)(A). Two statutory definitions figure in our decision. Section 802(13) defines the unadorned term "felony" to mean any "offense classified by applicable Federal or State law as a felony." Section 802(44) defines the compound term "felony drug offense" to mean an offense involving specified drugs that is "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." The term "felony drug offense" contained in § 841(b)(1)(A)'s provision for a 20-year minimum sentence, we hold, is defined exclusively by § 802(44) and does not incorporate § 802(13)'s definition of "felony." A state drug offense punishable by more than one year therefore qualifies as a "felony drug offense," even if state law classifies the offense as a misdemeanor. I Petitioner Keith Lavon Burgess pleaded guilty in the United States District Court for the District of South Carolina to conspiracy to possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a) and 846.[1] A *1576 violation of § 841(a) involving that quantity of cocaine base ordinarily carries a mandatory minimum sentence of 10 years. § 841(b)(1)(A). The minimum sentence increases to 20 years, however, if the crime follows a prior conviction for a "felony drug offense." Ibid. Burgess had previously been convicted of possessing cocaine in violation of S.C.Code Ann. § 44-53-370(c) and (d)(1) (2002 and Supp.2007). Although that offense carried a maximum sentence of two years' imprisonment, South Carolina classified it as a misdemeanor. § 44-53-370(d)(1). Burgess' prior South Carolina conviction, the Government urged, raised the minimum sentence for his federal conviction to 20 years. The enhancement was mandatory, the Government maintained, because Congress defined "felony drug offense" to include state cocaine offenses "punishable by imprisonment for more than one year." 21 U.S.C. § 802(44).[2] Burgess contested the enhancement of his federal sentence. The term "felony drug offense," he argued, incorporates the term "felony," a word separately defined in § 802(13) to mean "any Federal or State offense classified by applicable Federal or State law as a felony." A prior drug offense does not rank as a "felony drug offense," he contended, unless it is (1) classified as a felony under the law of the punishing jurisdiction, per § 802(13); and (2) punishable by more than one year's imprisonment, per § 802(44). Rejecting Burgess' argument, the District Court ruled that § 802(44) alone controls the meaning of "felony drug offense" as that term is used in § 841(b)(1)(A). Although the District Court's ruling subjected Burgess to a 20-year minimum sentence, the Government moved for a downward departure based on Burgess' substantial assistance in another prosecution. See 18 U.S.C. § 3553(e) (2000 ed., Supp. V). The court granted the motion and sentenced Burgess to 156 months' imprisonment followed by ten years' supervised release. The United States Court of Appeals for the Fourth Circuit affirmed. The "`commonsense way to interpret "felony drug offense,"'" that court said, "`is by reference to the definition in § 802(44).'" 478 F.3d 658, 662 (2007) (quoting United States v. Roberson, 459 F.3d 39, 52 (C.A.1 2006)). The Fourth Circuit found nothing in the "plain language or statutory scheme... to indicate that Congress intended `felony drug offense' also to incorporate the definition [of `felony'] in § 802(13)." 478 F.3d, at 662. Burgess, proceeding pro se, petitioned for a writ of certiorari. We granted the writ, 552 U.S. ___, 128 S. Ct. 740, 169 L. Ed. 2d 578 (2007), to resolve a split among the Circuits on the question Burgess presents: Does a drug crime classified as a misdemeanor by state law, but punishable by more than one year's imprisonment, rank as a "felony drug offense" under 21 U.S.C. § 841(b)(1)(A)? Compare 478 F.3d 658 (case below), and Roberson, 459 F.3d 39 (§ 802(44) provides exclusive definition of "felony drug offense"), with United States v. West, 393 F.3d 1302 (C.A.D.C.2005) (both § 802(13) and § 802(44) limit meaning of "felony drug offense"). *1577 II A The Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., contains two definitions central to the dispute before us; they bear repetition in full. Section 802(13) provides: "The term `felony' means any Federal or State offense classified by applicable Federal or State law as a felony." Section 802(44) states: "The term `felony drug offense' means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." Burgess argues here, as he did below, that "felony drug offense," as used in § 841(b)(1)(A), should be construed to incorporate both the definition of "felony" in § 802(13) and the definition of "felony drug offense" in § 802(44). Under his reading, the § 841(b)(1)(A) enhancement is triggered only when the prior conviction is both "classified by applicable Federal or State law as a felony," § 802(13), and "punishable by imprisonment for more than one year," § 802(44). The Government, in contrast, reads § 802(44) to provide the exclusive definition of "felony drug offense." Under the Government's reading, all defendants whose prior drug crimes were punishable by more than one year in prison would be subject to the § 841(b)(1)(A) enhancement, regardless of the punishing jurisdiction's classification of the offense. The Government's reading, we are convinced, correctly interprets the statutory text and context. Section 802(44) defines the precise phrase used in § 841(b)(1)(A)—"felony drug offense." "Statutory definitions control the meaning of statutory words ... in the usual case." Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S. Ct. 503, 93 L. Ed. 611 (1949). See also Stenberg v. Carhart, 530 U.S. 914, 942, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000) ("When a statute includes an explicit definition, we must follow that definition...."); 2A N. Singer & J. Singer, Statutes and Statutory Construction § 47:7, pp. 298-299, and nn. 2-3 (7th ed.2007) (hereinafter Singer). The CSA, to be sure, also defines the term "felony." The language and structure of the statute, however, indicate that Congress used the phrase "felony drug offense" as a term of art defined by § 802(44) without reference to § 802(13). First, Congress stated that "[t]he term `felony drug offense' means an offense that is punishable by imprisonment for more than one year." § 802(44) (emphasis added). "As a rule, [a] definition which declares what a term `means' ... excludes any meaning that is not stated." Colautti v. Franklin, 439 U.S. 379, 392-393, n. 10, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979) (some internal quotation marks omitted). See also Groman v. Commissioner, 302 U.S. 82, 86, 58 S. Ct. 108, 82 L. Ed. 63 (1937); 2A Singer § 47:7, p. 306, and n. 20. Second, the term "felony" is commonly defined to mean a crime punishable by imprisonment for more than one year. See, e.g., 18 U.S.C. § 3559(a) (classifying crimes with a maximum term of more than one year as felonies); Black's Law Dictionary 651 (8th ed.2004) (defining "felony" as "[a] serious crime usu[ally] punishable by imprisonment for more than one year or by death"). Section 802(44)'s definition of "felony drug offense" as "an offense ... punishable by imprisonment for more than one year," in short, leaves no blank to be *1578 filled by § 802(13) or any other definition of "felony." Third, if Congress wanted "felony drug offense" to incorporate the definition of "felony" in § 802(13), it easily could have written § 802(44) to state: "The term `felony drug offense' means a felony that is punishable by imprisonment for more than one year ...." See Roberson, 459 F.3d, at 52. Congress has often used that drafting technique—i.e., repeating a discretely defined word—when it intends to incorporate the definition of a particular word into the definition of a compound expression. See, e.g., 15 U.S.C. § 1672(a)-(b) (defining "earnings" and then defining "disposable earnings" as "that part of the earnings" meeting certain criteria); 18 U.S.C. § 1956(c)(3)-(4) (defining "transaction" and then defining "financial transaction" as "a transaction which" meets other criteria); § 1961(1), (5) (2000 ed. and Supp. V) (defining "racketeering activity" and then defining "pattern of racketeering activity" to require "at least two acts of racketeering activity").[3] Fourth, our reading avoids anomalies that would arise if both 21 U.S.C. § 802(13) and § 802(44) governed application of the sentencing enhancement in § 841(b)(1)(A). Notably, § 802(44) includes foreign offenses punishable by more than one year, while § 802(13) includes only federal and state offenses. Incorporation of § 802(13) into § 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in § 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors. See N.J. Stat. Ann. § 2C:1-4 (West 2005); Me. Rev.Stat. Ann., Tit. 17-A, § 1252 (Supp. *1579 2007); Brief for United States 35. Burgess' compound definition of "felony drug offense" leaves unanswered the appropriate classification of drug convictions in those jurisdictions. See, e.g., United States v. Brown, 937 F.2d 68, 70 (C.A.2 1991) (relying on New Jersey common law to determine that the State classifies offenses punishable by more than one year as felonies). No such uncertainty arises under the precise definition Congress provided in § 802(44). Finally, reading § 802(44) as the exclusive definition of "felony drug offense" hardly renders § 802(13) extraneous. Section 802(13) serves to define "felony" for many CSA provisions using that unadorned term. See, e.g., §§ 824(a)(2) (revocation of license to manufacture controlled substances upon conviction of a felony), 843(b) (use of a communication facility to commit a felony), 843(d)(1)-(2) (sentencing enhancements), 843(e) (prohibition on engaging in transactions involving listed chemicals upon conviction of a felony involving those chemicals), 848(c)(1) (definition of "continuing criminal enterprise"), 848(e)(1)(B) (mandatory minimum term for killing a law enforcement officer to avoid prosecution for a felony), 853(d) (rebuttable presumption that property acquired during commission of certain felonies is subject to criminal forfeiture), 878(a)(3) (authority to make warrantless arrest where there is probable cause to believe a felony has been committed). B The drafting history of the CSA reinforces our reading of § 802(44) as the exclusive definition of "felony drug offense." In 1988, Congress first used the term "felony drug offense" to describe the type of prior conviction that would trigger a 20-year mandatory minimum sentence under § 841(b)(1)(A). See National Narcotics Leadership Act, Pub.L. 100-690, § 6452(a), 102 Stat. 4371. The 1988 definition of the term was placed within § 841(b)(1)(A) itself; the definition covered "an offense that is a felony under any ... Federal law... or ... any law of a State or a foreign country" prohibiting or restricting conduct relating to certain types of drugs. § 6452(a)(2), ibid.[4] But in 1994, Congress amended the definition, replacing "an offense that is a felony under ... any law of a State," ibid. (emphasis added), with "an offense that is punishable by imprisonment for more than one year under any law ... of a State," Violent Crime Control and Law Enforcement Act, Pub.L. 103-322, § 90105(c)-(d), 108 Stat.1988 (emphasis added). In lieu of incorporation within § 841(b)(1)(A), the new definition was placed in a discrete § 802 definition section. Ibid. This alteration lends considerable support to our reading of the statute. Before 1994, the definition of "felony drug offense" depended on the vagaries of state-law classifications of offenses as felonies or misdemeanors. The 1994 amendments replaced that definition with a uniform federal standard based on the authorized length of imprisonment. By recognizing § 802(44) as the exclusive definition of "felony drug offense," our reading serves an evident purpose of the 1994 revision: to *1580 bring a measure of uniformity to the application of § 841(b)(1)(A) by eliminating disparities based on divergent state classifications of offenses. By contrast, Burgess reads the 1994 alteration as merely adding a length-of-imprisonment requirement to a definition that already required—and, he contends, continues to require—designation of an offense as a felony by the punishing jurisdiction. That view, however, is difficult to square with Congress' deletion of the word "felony" and substitution of the phrase "punishable by imprisonment for more than one year." If Burgess were correct, moreover, the sole effect of the 1994 change would have been to exclude from the compass of § 841(b)(1)(A) the few drug offenses classified as felonies under the law of the punishing jurisdiction but subject to a sentence of one year or less. See Tr. of Oral Arg. 6-8.[5] See also Brief for Petitioner 15 (purpose of 1994 alteration was to eliminate enhancement for "truly minor offenses" nonetheless classified as felonies). Burgess concedes that under his reading of the statute "the language that Congress added [in 1994] has very little practical effect," but defends his interpretation on the ground that Congress labeled the changes "conforming amendments." Tr. of Oral Arg. 8. See also 108 Stat. 1987; Brief for Petitioner 12. Burgess places more weight on the "Conforming Amendments" caption than it can bear. Congress did not disavow any intent to make substantive changes; rather, the amendments were "conforming" because they harmonized sentencing provisions in the CSA and the Controlled Substances Import and Export Act, 84 Stat. 1285, 21 U.S.C. § 951 et seq. Treating the amendments as nonsubstantive would be inconsistent with their text, not to mention Burgess' own view that § 802(44) added a new length-of-imprisonment requirement to the definition of "felony drug offense." In sum, the 1994 alteration replaced a patchwork of state and foreign classifications with a uniform federal standard based on the authorized term of imprisonment. Burgess' argument that Congress added something—the definition now in § 802(44)—but subtracted nothing encounters formidable impediments: the text and history of the statute. C Burgess urges us to apply the rule of lenity in determining whether the term "felony drug offense" incorporates § 802(13)'s definition of "felony." "[T]he touchstone of the rule of lenity is statutory ambiguity." Bifulco v. United States, 447 U.S. 381, 387, 100 S. Ct. 2247, 65 L. Ed. 2d 205 (1980) (internal quotation marks omitted). "The rule comes into operation at the end of the process of construing what Congress has expressed," Callanan v. United States, 364 U.S. 587, 596, 81 S. Ct. 321, 5 L. Ed. 2d 312 (1961), and "applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute," United States v. Shabani, 513 U.S. 10, 17, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994). Here, Congress expressly defined the term "felony drug offense." The definition is coherent, complete, and by all signs exclusive. Accordingly, there is no ambiguity for the rule of lenity to resolve. *1581 * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is Affirmed.

For certain federal drug offenses, the Controlled Substances Act mandates a minimum sentence of imprisonment for 10 years. (b)(1)(A). That minimum doubles to 20 years for defendants previously convicted of a "felony drug offense." The question in this case is whether a state drug offense classified as a misdemeanor, but punishable by more than one year's imprisonment, is a "felony drug offense" as that term is used in 841(b)(1)(A). Two statutory definitions figure in our decision. Section 802(13) defines the unadorned term "felony" to mean any "offense classified by applicable Federal or State law as a felony." Section 802(44) defines the compound term "felony drug offense" to mean an offense involving specified drugs that is "punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country." The term "felony drug offense" contained in 841(b)(1)(A)'s provision for a 20-year minimum sentence, we hold, is defined exclusively by 802(44) and does not incorporate 802(13)'s definition of "felony." A state drug offense punishable by more than one year therefore qualifies as a "felony drug offense," even if state law classifies the offense as a misdemeanor. I Petitioner Keith Lavon Burgess pleaded guilty in the United States District Court for the District of South Carolina to conspiracy to possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. 841(a) and 846.[1] A *1576 violation of 841(a) involving that quantity of cocaine base ordinarily carries a mandatory minimum sentence of 10 years. 841(b)(1)(A). The minimum sentence increases to 20 years, however, if the crime follows a prior conviction for a "felony drug offense." Burgess had previously been convicted of possessing cocaine in violation of S.C.Code Ann. 44-53-3(c) and (d)(1) Although that offense carried a maximum sentence of two years' imprisonment, South Carolina classified it as a misdemeanor. 44-53-3(d)(1). Burgess' prior South Carolina conviction, the Government urged, raised the minimum sentence for his federal conviction to 20 years. The enhancement was mandatory, the Government maintained, because Congress defined "felony drug offense" to include state cocaine offenses "punishable by imprisonment for more than one year." 21 U.S.C. 802(44).[2] Burgess contested the enhancement of his federal sentence. The term "felony drug offense," he argued, incorporates the term "felony," a word separately defined in 802(13) to mean "any Federal or State offense classified by applicable Federal or State law as a felony." A prior drug offense does not rank as a "felony drug offense," he contended, unless it is (1) classified as a felony under the law of the punishing jurisdiction, per 802(13); and (2) punishable by more than one year's imprisonment, per 802(44). Rejecting Burgess' argument, the District Court ruled that 802(44) alone controls the meaning of "felony drug offense" as that term is used in 841(b)(1)(A). Although the District Court's ruling subjected Burgess to a 20-year minimum sentence, the Government moved for a downward departure based on Burgess' substantial assistance in another prosecution. See 18 U.S.C. 3553(e) ( ed., Supp. V). The court granted the motion and sentenced Burgess to 156 months' imprisonment followed by ten years' supervised release. The United States Court of Appeals for the Fourth Circuit affirmed. The "`commonsense way to interpret "felony drug offense,"'" that court said, "`is by reference to the definition in 802(44).'" The Fourth Circuit found nothing in the "plain language or statutory scheme. to indicate that Congress intended `felony drug offense' also to incorporate the definition [of `felony'] in 802(13)." 478 F.3d, at Burgess, proceeding pro se, petitioned for a writ of certiorari. We granted the writ, 5 U.S. to resolve a split among the Circuits on the question Burgess presents: Does a drug crime classified as a misdemeanor by state law, but punishable by more than one year's imprisonment, rank as a "felony drug offense" under (b)(1)(A)? Compare (case below), and ( 802(44) provides exclusive definition of "felony drug offense"), with United (C.A.D.C.2005) (both 802(13) and 802(44) limit meaning of "felony drug offense"). *1577 II A The Controlled Substances Act (CSA), 21 U.S.C. 801 et seq., contains two definitions central to the dispute before us; they bear repetition in full. Section 802(13) provides: "The term `felony' means any Federal or State offense classified by applicable Federal or State law as a felony." Section 802(44) states: "The term `felony drug offense' means an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances." Burgess argues here, as he did below, that "felony drug offense," as used in 841(b)(1)(A), should be construed to incorporate both the definition of "felony" in 802(13) and the definition of "felony drug offense" in 802(44). Under his reading, the 841(b)(1)(A) enhancement is triggered only when the prior conviction is both "classified by applicable Federal or State law as a felony," 802(13), and "punishable by imprisonment for more than one year," 802(44). The Government, in contrast, reads 802(44) to provide the exclusive definition of "felony drug offense." Under the Government's reading, all defendants whose prior drug crimes were punishable by more than one year in prison would be subject to the 841(b)(1)(A) enhancement, regardless of the punishing jurisdiction's classification of the offense. The Government's reading, we are convinced, correctly interprets the statutory text and context. Section 802(44) defines the precise phrase used in 841(b)(1)(A)—"felony drug offense." "Statutory definitions control the meaning of statutory words in the usual case." See also ; 2A N. Singer & J. Singer, Statutes and Statutory Construction 47:7, pp. 298-299, and nn. 2-3 (hereinafter Singer). The CSA, to be sure, also defines the term "felony." The language and structure of the statute, however, indicate that Congress used the phrase "felony drug offense" as a term of art defined by 802(44) without reference to 802(13). First, Congress stated that "[t]he term `felony drug offense' means an offense that is punishable by imprisonment for more than one year." 802(44) "As a rule, [a] definition which declares what a term `means' excludes any meaning that is not stated." See also ; 2A Singer 47:7, p. 306, and n. 20. Second, the term "felony" is commonly defined to mean a crime punishable by imprisonment for more than one year. See, e.g., 18 U.S.C. 3559(a) ; Black's Law Dictionary 651 (8th ed.2004) (defining "felony" as "[a] serious crime usu[ally] punishable by imprisonment for more than one year or by death"). Section 802(44)'s definition of "felony drug offense" as "an offense punishable by imprisonment for more than one year," in short, leaves no blank to be *1578 filled by 802(13) or any other definition of "felony." Third, if Congress wanted "felony drug offense" to incorporate the definition of "felony" in 802(13), it easily could have written 802(44) to state: "The term `felony drug offense' means a felony that is punishable by imprisonment for more than one year" See 459 F.3d, at Congress has often used that drafting technique—i.e., repeating a discretely defined word—when it intends to incorporate the definition of a particular word into the definition of a compound expression. See, e.g., 15 U.S.C. 1672(a)-(b) (defining "earnings" and then defining "disposable earnings" as "that part of the earnings" meeting certain criteria); 18 U.S.C. 1956(c)(3)-(4) (defining "transaction" and then defining "financial transaction" as "a transaction which" meets other criteria); (1), (5) ( ed. and Supp. V) (defining "racketeering activity" and then defining "pattern of racketeering activity" to require "at least two acts of racketeering activity").[3] Fourth, our reading avoids anomalies that would arise if both 21 U.S.C. 802(13) and 802(44) governed application of the sentencing enhancement in 841(b)(1)(A). Notably, 802(44) includes foreign offenses punishable by more than one year, while 802(13) includes only federal and state offenses. Incorporation of 802(13) into 841(b)(1)(A) would exclude enhancement based on a foreign offense, notwithstanding the express inclusion of foreign offenses in 802(44)'s definition of "felony drug offense." Furthermore, some States and many foreign jurisdictions do not label offenses as felonies or misdemeanors. See N.J. Stat. Ann. 2C:1-4 (West 2005); Me. Rev.Stat. Ann., Tit. -A, 12 ; Brief for United States 35. Burgess' compound definition of "felony drug offense" leaves unanswered the appropriate classification of drug convictions in those jurisdictions. See, e.g., United No such uncertainty arises under the precise definition Congress provided in 802(44). Finally, reading 802(44) as the exclusive definition of "felony drug offense" hardly renders 802(13) extraneous. Section 802(13) serves to define "felony" for many CSA provisions using that unadorned term. See, e.g., 824(a)(2) (revocation of license to manufacture controlled substances upon conviction of a felony), 843(b) (use of a communication facility to commit a felony), 843(d)(1)-(2) (sentencing enhancements), 843(e) (prohibition on engaging in transactions involving listed chemicals upon conviction of a felony involving those chemicals), 848(c)(1) (definition of "continuing criminal enterprise"), 848(e)(1)(B) (mandatory minimum term for killing a law enforcement officer to avoid prosecution for a felony), 853(d) (rebuttable presumption that property acquired during commission of certain felonies is subject to criminal forfeiture), 878(a)(3) (authority to make warrantless arrest where there is probable cause to believe a felony has been committed). B The drafting history of the CSA reinforces our reading of 802(44) as the exclusive definition of "felony drug offense." In 1988, Congress first used the term "felony drug offense" to describe the type of prior conviction that would trigger a 20-year mandatory minimum sentence under 841(b)(1)(A). See National Narcotics Leadership Act, Pub.L. 100-690, 64(a), The 1988 definition of the term was placed within 841(b)(1)(A) itself; the definition covered "an offense that is a felony under any Federal law. or any law of a State or a foreign country" prohibiting or restricting conduct relating to certain types of drugs. 64(a)(2), [4] But in Congress amended the definition, replacing "an offense that is a felony under any law of a State," with "an offense that is punishable by imprisonment for more than one year under any law of a State," Violent Crime Control and Law Enforcement Act, Pub.L. 103-322, 90105(c)-(d), 108 Stat.1988 In lieu of incorporation within 841(b)(1)(A), the new definition was placed in a discrete 802 definition section. This alteration lends considerable support to our reading of the statute. Before the definition of "felony drug offense" depended on the vagaries of state-law classifications of offenses as felonies or misdemeanors. The amendments replaced that definition with a uniform federal standard based on the authorized length of imprisonment. By recognizing 802(44) as the exclusive definition of "felony drug offense," our reading serves an evident purpose of the revision: to *1580 bring a measure of uniformity to the application of 841(b)(1)(A) by eliminating disparities based on divergent state classifications of offenses. By contrast, Burgess reads the alteration as merely adding a length-of-imprisonment requirement to a definition that already required—and, he contends, continues to require—designation of an offense as a felony by the punishing jurisdiction. That view, however, is difficult to square with Congress' deletion of the word "felony" and substitution of the phrase "punishable by imprisonment for more than one year." If Burgess were correct, moreover, the sole effect of the change would have been to exclude from the compass of 841(b)(1)(A) the few drug offenses classified as felonies under the law of the punishing jurisdiction but subject to a sentence of one year or less. See Tr. of Oral Arg. 6-8.[5] See also Brief for Petitioner 15 (purpose of alteration was to eliminate enhancement for "truly minor offenses" nonetheless classified as felonies). Burgess concedes that under his reading of the statute "the language that Congress added [in ] has very little practical effect," but defends his interpretation on the ground that Congress labeled the changes "conforming amendments." Tr. of Oral Arg. 8. See also ; Brief for Petitioner 12. Burgess places more weight on the "Conforming Amendments" caption than it can bear. Congress did not disavow any intent to make substantive changes; rather, the amendments were "conforming" because they harmonized sentencing provisions in the CSA and the Controlled Substances Import and Export Act, 21 U.S.C. 951 et seq. Treating the amendments as nonsubstantive would be inconsistent with their text, not to mention Burgess' own view that 802(44) added a new length-of-imprisonment requirement to the definition of "felony drug offense." In sum, the alteration replaced a patchwork of state and foreign classifications with a uniform federal standard based on the authorized term of imprisonment. Burgess' argument that Congress added something—the definition now in 802(44)—but subtracted nothing encounters formidable impediments: the text and history of the statute. C Burgess urges us to apply the rule of lenity in determining whether the term "felony drug offense" incorporates 802(13)'s definition of "felony." "[T]he touchstone of the rule of lenity is statutory ambiguity." "The rule comes into operation at the end of the process of construing what Congress has expressed," and "applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute," United Here, Congress expressly defined the term "felony drug offense." The definition is coherent, complete, and by all signs exclusive. Accordingly, there is no ambiguity for the rule of lenity to resolve. *1581 * * * For the reasons stated, the judgment of the Court of Appeals for the Fourth Circuit is Affirmed.

Justice Stevens

majority

Glickman v. Wileman Brothers & Elliott, Inc.

1997-06-25

https://www.courtlistener.com/opinion/118139/glickman-v-wileman-brothers-elliott-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118139/

1996-086

A number of growers, handlers, and processors of California tree fruits (respondents) brought this proceeding to challenge the validity of various regulations contained in marketing orders promulgated by the Secretary of Agriculture. The orders impose assessments on respondents that cover the expenses of administering the orders, including the cost of generic advertising of California nectarines, plums, and peaches. The question presented to us is whether the requirement that respondents finance such generic advertising *461 is a law "abridging the freedom of speech" within the meaning of the First Amendment. I Congress enacted the Agricultural Marketing Agreement Act of 1937 (AMAA), ch. 296, 50 Stat. 246, as amended, 7 U.S. C. § 601 et seq., in order to establish and maintain orderly marketing conditions and fair prices for agricultural commodities. § 602(1). Marketing orders promulgated pursuant to the AMAA are a species of economic regulation that has displaced competition in a number of discrete markets; they are expressly exempted from the antitrust laws. § 608b. Collective action, rather than the aggregate consequences of independent competitive choices, characterizes these regulated markets. In order "to avoid unreasonable fluctuations in supplies and prices," § 602(4), these orders may include mechanisms that provide a uniform price to all producers in a particular market,[1] that limit the quality and the quantity of the commodity that may be marketed, §§ 608c(6)(A), (7), that determine the grade and size of the commodity, § 608c(6)(A), and that make an orderly disposition of any surplus that might depress market prices, ibid. Pursuant to the policy of collective, rather than competitive, marketing, the orders also authorize joint research and development projects, inspection procedures that ensure uniform quality, and even certain standardized packaging requirements. §§ 608c(6)(D), (H), (I). The expenses of administering such orders, including specific projects undertaken to serve the economic interests of the cooperating producers, are "paid from funds collected pursuant to the marketing order." §§ 608c(6)(I), 610(b)(2)(ii). Marketing orders must be approved by either two-thirds of the affected producers or by producers who market at *462 least two-thirds of the volume of the commodity. § 608c(9)(B). The AMAA restricts the marketing orders "to the smallest regional production areas . . . practicable." § 608c(11)(b). The orders are implemented by committees composed of producers and handlers of the regulated commodity, appointed by the Secretary, who recommend rules to the Secretary governing marketing matters such as fruit size and maturity levels. 7 CFR §§ 916.23, 916.62, 917.25, 917.30 (1997). The committees also determine the annual rate of assessments to cover the expenses of administration, inspection services, research, and advertising and promotion. §§ 916.31(c), 917.35(f). Among the collective activities that Congress authorized for certain specific commodities is "any form of marketing promotion including paid advertising." 7 U.S. C. § 608c(6) (I).[2] The authorized promotional activities, like the marketing orders themselves, are intended to serve the producers' common interest in disposing of their output on favorable terms. The central message of the generic advertising at issue in this case is that "California Summer Fruits" are wholesome, delicious, and attractive to discerning shoppers. See App. 530. All of the relevant advertising, insofar as it is authorized by the statute and the Secretary's regulations, is designed to serve the producers' and handlers' common interest in promoting the sale of a particular product.[3] *463 II The regulations at issue in this litigation are contained in Marketing Order 916, which regulates nectarines grown in California, and Marketing Order 917, which originally regulated peaches, pears, and plums grown in California.[4] A 1966 amendment to the former expressly authorized generic advertising of nectarines, see 31 Fed. Reg. 8177, and a series of amendments, beginning in 1971, to the latter authorized advertising of each of the regulated commodities, see 36 Fed. Reg. 14381 (1971); 41 Fed. Reg. 14375, 17528 (1976).[5] The advertising provisions relating to pears are not now being challenged, thus we limit our discussion to generic advertising of California nectarines, plums, and peaches. Respondent Wileman Bros. & Elliott, Inc., is a large producer of these fruits that packs and markets its own output as well as that grown by other farmers. In 1987, after encountering problems with some fruit varieties under the maturity and minimum size standards in the orders, it refused to pay its assessments and filed a petition with the Secretary challenging those standards. In 1988, it filed a second petition challenging amendments to the maturity standards as well as the generic advertising regulations. The Administrative Law Judge (ALJ), in two separate decisions that are explained in a total of 769 pages, ruled in favor of Wileman on the Administrative Procedure Act (APA) issues, without resolving respondents' First Amendment claims. App. to *464 Brief in Opposition 393a.[6] In a comparably detailed decision, the Judicial Officer of the Department of Agriculture entirely reversed the ALJ. Wileman, along with 15 other handlers, then sought review of the Judicial Officer's decision by filing this action in the District Court pursuant to 7 U.S. C. § 608c(15)(B). A number of enforcement actions brought by the Secretary to collect withheld assessments were consolidated with the review proceeding. Acting on cross-motions for summary judgment, the District Court upheld both marketing orders and entered judgment of $3.1 million in past due assessments against the handlers. In the Court of Appeals the handlers challenged the generic advertising provisions of the orders as violative of both the APA and the First Amendment. The court rejected the statutory challenge, concluding that the record contained substantial evidence justifying both the original decision to engage in generic advertising[7] and the continuation of the program. It explained: *465 "The Nectarine Administrative Committee and the Peach Commodity Committee engage in a careful process each year prior to and during their annual spring meetings in approving the advertising program for the upcoming season. Prior to the full committee meeting, the Subcommittee on Advertising and Promotion meets to review in detail the program developed by its staff. The staff in turn uses monthly reports on price trends, consumer interests, and general market conditions in the formation of the proposed advertising program. . . . . . "[I]t is only because the handlers themselves, through the committees, recommend a budget with a generic advertising component that the program is renewed by the Secretary every year. In fact, in most years the recommendations have been unanimous. We cannot assume that the handlers—the parties with firsthand knowledge of the state of their industry—would make recommendations that have an adverse effect on their businesses. Of course, the interests of the voting committee members may not always coincide with those of every handler in the industry. However, this court has previously noted that the Supreme Court `upheld the constitutionality of the system despite the fact that it may produce results with which some growers or handlers will disagree.' Saulsbury Orchards and Almond Processing, Inc. v. Yeutter, 917 F.2d 1190, 1197 (9th Cir. 1990) (citing United States v. Rock Royal Coop., 307 U.S. 533 . . . (1939))." Wileman Bros. & Elliott, Inc. v. Espy, 58 F.3d 1367, 1375-1376 (CA9 1995) (footnote omitted). The Court of Appeals concluded, however, that Government enforced contributions to pay for generic advertising violated the First Amendment rights of the handlers. Relying on an earlier Ninth Circuit decision that had cited our *466 decision in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), see Cal-Almond, Inc. v. United States Dept. of Agriculture, 14 F.3d 429 (CA9 1993), the court began by stating that the "First Amendment right of freedom of speech includes a right not to be compelled to render financial support for others' speech." 58 F.3d, at 1377. It then reviewed the generic advertising regulations under "the test for restrictions on commercial speech set out in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 . . . (1980)." Id., at 1378. Although it was satisfied that the Government interest in enhancing returns to peach and nectarine growers was substantial, it was not persuaded that the generic advertising passed either the second or third "prongs" of Central Hudson. With respect to the former, even though the generic advertising "undoubtedly" has increased peach and nectarine sales, the Government failed to prove that it did so more effectively than individualized advertising. The court also concluded that the program was not "narrowly tailored" because it did not give the handlers any credit for their own advertising and because California was the only State in which such programs were in place.[8] The Court of Appeals' disposition of the First Amendment claim is in conflict with a decision of the Court of Appeals for the Third Circuit that rejected a challenge to generic advertising of beef authorized by the Beef Promotion and Research Act of 1985, 7 U.S. C. §§ 2901-2911. United States v. Frame, 885 F.2d 1119, 1136, 1137 (1989). Characterizing that statute as "legislation in furtherance of an ideologically neutral compelling state interest," id., at 1137, and noting that the "Cattlemen's Board is authorized only to develop *467 a campaign to promote the product that the defendant himself has chosen to market," id., at 1136, despite the plaintiff's objections to the content of the advertising,[9] the court found no violation of his First Amendment rights. We granted the Secretary's petition for certiorari to resolve the conflict, 517 U.S. 1232 (1996), and now reverse. III In challenging the constitutionality of the generic advertising program in the Court of Appeals, respondents relied, in part, on their claimed disagreement with the content of some of the generic advertising. 58 F.3d, at 1377, n. 6. The District Court had found no merit to this aspect of their claim,[10] and the Court of Appeals did not rely on it for its conclusion that the program was unconstitutional. Rather, the Court of Appeals invalidated the entire program on the theory that the program could not survive Central Hudson because the Government had failed to prove that generic advertising was more effective than individual advertising in increasing consumer demand for California nectarines, plums, and peaches. That holding did not depend at all on either the content of the advertising, or on the respondents' claimed disagreement with any particular message. Although *468 respondents have continued in this Court to argue about their disagreement with particular messages, those arguments, while perhaps calling into question the administration of portions of the program, have no bearing on the validity of the entire program.[11] For purposes of our analysis, we neither accept nor reject the factual assumption underlying the Court of Appeals' invalidation of the program—namely, that generic advertising may not be the most effective method of promoting the sale of these commodities. The legal question that we address is whether being compelled to fund this advertising raises a First Amendment issue for us to resolve, or rather is simply a question of economic policy for Congress and the Executive to resolve. *469 In answering that question we stress the importance of the statutory context in which it arises. California nectarines and peaches are marketed pursuant to detailed marketing orders that have displaced many aspects of independent business activity that characterize other portions of the economy in which competition is fully protected by the antitrust laws. The business entities that are compelled to fund the generic advertising at issue in this litigation do so as a part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme. It is in this context that we consider whether we should review the assessments used to fund collective advertising, together with other collective activities, under the standard appropriate for the review of economic regulation or under a heightened standard appropriate for the review of First Amendment issues. IV Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of speech protected by the First Amendment. First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience.[12] Second, they do not compel any person to engage in any actual or symbolic speech.[13] Third, they do not compel the producers to endorse or to finance any political *470 or ideological views.[14] Indeed, since all of the respondents are engaged in the business of marketing California nectarines, plums, and peaches, it is fair to presume that they agree with the central message of the speech that is generated by the generic program. Thus, none of our First Amendment jurisprudence provides any support for the suggestion that the promotional regulations should be scrutinized under a different standard from that applicable to the other anti competitive features of the marketing orders. Respondents advance several arguments in support of their claim that being required to fund the generic advertising program violates the First Amendment. Respondents argue that the assessments for generic advertising impinge on their First Amendment rights because they reduce the amount of money that producers have available to conduct their own advertising. This is equally true, however, of assessments to cover employee benefits, inspection fees, or any other activity that is authorized by a marketing order. The First Amendment has never been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm's advertising budget. The fact that an economic regulation may indirectly lead to a reduction in a handler's individual advertising budget does not itself amount to a restriction on speech. The Court of Appeals, perhaps recognizing the expansive nature of respondents' argument, did not rely on the claim that the assessments for generic advertising indirectly limit the extent of the handlers' own advertising. Rather, the Court of Appeals apparently accepted respondents' argument that the assessments infringe First Amendment rights because they constitute compelled speech. Our compelled speech case law, however, is clearly inapplicable to the regulatory scheme at issue here. The use of assessments to pay *471 for advertising does not require respondents to repeat an objectionable message out of their own mouths, cf. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632 (1943), require them to use their own property to convey an antagonistic ideological message, cf. Wooley v. Maynard, 430 U.S. 705 (1977); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, 18 (1986) (plurality opinion), force them to respond to a hostile message when they "would prefer to remain silent," see ibid., or require them to be publicly identified or associated with another's message, cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 88 (1980). Respondents are not required themselves to speak, but are merely required to make contributions for advertising. With trivial exceptions on which the court did not rely,[15] none of the generic advertising conveys any message with which respondents disagree. Furthermore, the advertising is attributed not to them, but to the California Tree Fruit Agreement or "California Summer Fruits." See, e. g., App. 530. Although this regulatory scheme may not compel speech as recognized by our case law, it does compel financial contributions that are used to fund advertising. As the Court of Appeals read our decision in Abood, just as the First Amendment prohibits compelled speech, it prohibits—at least without sufficient justification by the government—compelling an individual to "render financial support for others' speech." 58 F.3d, at 1377. However, Abood, and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's "freedom of belief." 431 U.S., at 235. We considered, in Abood, whether it was constitutional *472 for the State of Michigan to require government employees who objected to unions or union activities to contribute to an "agency shop" arrangement requiring all employees to pay union dues as a condition of employment. We held that compelled contributions to support activities related to collective bargaining were "constitutionally justified by the legislative assessment of the important contribution of the union shop" to labor relations. Id., at 222. Relying on our compelled-speech cases, however, the Court found that compelled contributions for political purposes unrelated to collective bargaining implicated First Amendment interests because they interfere with the values lying at the "heart of the First Amendment[—]the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." Id., at 234-235; see also id., at 235. Here, however, requiring respondents to pay the assessments cannot be said to engender any crisis of conscience. None of the advertising in this record promotes any particular message other than encouraging consumers to buy California tree fruit. Neither the fact that respondents may prefer to foster that message independently in order to promote and distinguish their own products, nor the fact that they think more or less money should be spent fostering it, makes this case comparable to those in which an objection rested on political or ideological disagreement with the content of the message. The mere fact that objectors believe their money is not being well spent "does not mean [that] they have a First Amendment complaint." Ellis v. Railway Clerks, 466 U.S. 435, 456 (1984). Moreover, rather than suggesting that mandatory funding of expressive activities always constitutes compelled speech in violation of the First Amendment, our cases provide affirmative support for the proposition that assessments to fund a lawful collective program may sometimes be used to pay for speech over the objection of some members of the *473 group. Thus, in Lehnert v. Ferris Faculty Assn., 500 U.S. 507 (1991), while we held that the cost of certain publications that were not germane to collective-bargaining activities could not be assessed against dissenting union members, id., at 527-528, we squarely held that it was permissible to charge them for those portions of "the Teachers' Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs . . . , and other miscellaneous matters." Id., at 529. That holding was an application of the rule announced in Abood and further refined in Keller v. State Bar of Cal., 496 U.S. 1 (1990), a case involving bar association activities. As we pointed out in Keller, "Abood held that a union could not expend a dissenting individual's dues for ideological activities not `germane' to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity." Id., at 13-14. This test is clearly satisfied in this case because (1) the generic advertising of California peaches and nectarines is unquestionably germane to the purposes of the marketing orders and, (2) in any event, the assessments are not used to fund ideological activities.[16] *474 We are not persuaded that any greater weight should be given to the fact that some producers do not wish to foster generic advertising than to the fact that many of them may well object to the marketing orders themselves because they might earn more money in an unregulated market. Respondents' criticisms of generic advertising provide no basis for concluding that factually accurate advertising constitutes an abridgment of anybody's right to speak freely. Similar criticisms might be directed at other features of the regulatory orders that impose restraints on competition that arguably disadvantage particular producers for the benefit of the entire market.[17] Although one may indeed question the wisdom of such a program, its debatable features are insufficient to warrant special First Amendment scrutiny. It was therefore error for the Court of Appeals to rely on Central Hudson for the purpose of testing the constitutionality of market order assessments for promotional advertising.[18] V The Court of Appeals' decision to apply the Central Hudson test is inconsistent with the very nature and purpose of the collective action program at issue here. The Court of *475 Appeals concluded that the advertising program does not "directly advance" the purposes of the marketing orders because the Secretary had failed to prove that generic advertising is any more effective in stimulating consumer demand for the commodities than the advertising that might otherwise be undertaken by producers acting independently. We find this an odd burden of proof to assign to the administrator of marketing orders that reflect a policy of displacing unrestrained competition with Government supervised cooperative marketing programs. If there were no marketing orders at all to set maturity levels, size, quantity, and other features, competition might well generate greater production of nectarines, peaches, and plums. It may also be true that if there were no generic advertising, competition would generate even more advertising and an even larger consumer demand than does the cooperative program. But the potential benefits of individual advertising do not bear on the question whether generic advertising directly advances the statute's collectivist goals. Independent advertising would be primarily motivated by the individual competitor's interest in maximizing its own sales, rather than in increasing the overall consumption of a particular commodity. While the First Amendment unquestionably protects the individual producer's right to advertise its own brands, the statute is designed to further the economic interests of the producers as a group. The basic policy decision that underlies the entire statute rests on an assumption that in the volatile markets for agricultural commodities the public will be best served by compelling cooperation among producers in making economic decisions that would be made independently in a free market. It is illogical, therefore, to criticize any cooperative program authorized by this statute on the ground that competition would provide greater benefits than joint action. On occasion it is appropriate to emphasize the difference between policy judgments and constitutional adjudication. *476 Judges who have endorsed the view that the Sherman Act is a charter of economic liberty[19] naturally approach laws that command competitors to participate in joint ventures with a jaundiced eye. Doubts concerning the policy judgments that underlie many features of this legislation do not, however, justify reliance on the First Amendment as a basis for reviewing economic regulations. Appropriate respect for the power of Congress to regulate commerce among the States provides abundant support for the constitutionality of these marketing orders on the following reasoning. Generic advertising is intended to stimulate consumer demand for an agricultural product in a regulated market. That purpose is legitimate and consistent with the regulatory goals of the overall statutory scheme. See § 602(1). At least a majority of the producers in each of the markets in which such advertising is authorized must be persuaded that it is effective, or presumably the programs would be discontinued.[20] Whether the benefits from the advertising justify its cost is a question that not only might be answered differently in different markets, but also involves the exercise of policy judgments that are better made by producers and administrators than by judges. As with other features of the marketing orders, individual producers may not share the views or the interests of others in the same market. But decisions that are made by the majority, if acceptable for other regulatory programs, should be equally so for promotional advertising. Perhaps more money may be at stake when a generic advertising program *477 is adopted than for other features of the cooperative endeavor, but that fact does not transform this question of business judgment into a constitutional issue. In sum, what we are reviewing is a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress. The mere fact that one or more producers "do not wish to foster" generic advertising of their product is not a sufficient reason for overriding the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that such programs are beneficial. The judgment of the Court of Appeals is reversed. It is so ordered.

A number of growers, handlers, and processors of California tree fruits (respondents) brought this proceeding to challenge the validity of various regulations contained in marketing orders promulgated by the Secretary of Agriculture. The orders impose assessments on respondents that cover the expenses of administering the orders, including the cost of generic advertising of California nectarines, plums, and peaches. The question presented to us is whether the requirement that respondents finance such generic advertising *461 is a law "abridging the freedom of speech" within the meaning of the First Amendment. I Congress enacted the Agricultural Marketing Agreement Act of 1937 (AMAA), ch. 296, as amended, 7 U.S. C. 601 et seq., in order to establish and maintain orderly marketing conditions and fair prices for agricultural commodities. 602(1). Marketing orders promulgated pursuant to the AMAA are a species of economic regulation that has displaced competition in a number of discrete markets; they are expressly exempted from the antitrust laws. 608b. Collective action, rather than the aggregate consequences of independent competitive choices, characterizes these regulated markets. In order "to avoid unreasonable fluctuations in supplies and prices," 602(4), these orders may include mechanisms that provide a uniform price to all producers in a particular market,[1] that limit the quality and the quantity of the commodity that may be marketed, 608c(6)(A), (7), that determine the grade and size of the commodity, 608c(6)(A), and that make an orderly disposition of any surplus that might depress market prices, Pursuant to the policy of collective, rather than competitive, marketing, the orders also authorize joint research and development projects, inspection procedures that ensure uniform quality, and even certain standardized packaging requirements. 608c(6)(D), (H), (I). The expenses of administering such orders, including specific projects undertaken to serve the economic interests of the cooperating producers, are "paid from funds collected pursuant to the marketing order." 608c(6)(I), 610(b)(2)(ii). Marketing orders must be approved by either two-thirds of the affected producers or by producers who market at *462 least two-thirds of the volume of the commodity. 608c(9)(B). The AMAA restricts the marketing orders "to the smallest regional production areas practicable." 608c(11)(b). The orders are implemented by committees composed of producers and handlers of the regulated commodity, appointed by the Secretary, who recommend rules to the Secretary governing marketing matters such as fruit size and maturity levels. 7 CFR 916.23, 916.62, 917.25, 917.30 (1997). The committees also determine the annual rate of assessments to cover the expenses of administration, inspection services, research, and advertising and promotion. 916.31(c), 917.35(f). Among the collective activities that Congress authorized for certain specific commodities is "any form of marketing promotion including paid " 7 U.S. C. 608c(6) (I).[2] The authorized promotional activities, like the marketing orders themselves, are intended to serve the producers' common interest in disposing of their output on favorable terms. The central message of the generic advertising at issue in this case is that "California Summer Fruits" are wholesome, delicious, and attractive to discerning shoppers. See App. 530. All of the relevant advertising, insofar as it is authorized by the statute and the Secretary's regulations, is designed to serve the producers' and handlers' common interest in promoting the sale of a particular product.[3] *463 II The regulations at issue in this litigation are contained in Marketing Order 916, which regulates nectarines grown in California, and Marketing Order 917, which originally regulated peaches, pears, and plums grown in California.[4] A 1966 amendment to the former expressly authorized generic advertising of nectarines, see and a series of amendments, beginning in 1971, to the latter authorized advertising of each of the regulated commodities, see (1971); 17528 (1976).[5] The advertising provisions relating to pears are not now being challenged, thus we limit our discussion to generic advertising of California nectarines, plums, and peaches. Respondent Wileman Bros. & Elliott, Inc., is a large producer of these fruits that packs and markets its own output as well as that grown by other farmers. In 1987, after encountering problems with some fruit varieties under the maturity and minimum size standards in the orders, it refused to pay its assessments and filed a petition with the Secretary challenging those standards. In 19, it filed a second petition challenging amendments to the maturity standards as well as the generic advertising regulations. The Administrative Law Judge (ALJ), in two separate decisions that are explained in a total of 769 pages, ruled in favor of Wileman on the Administrative Procedure Act (APA) issues, without resolving respondents' First Amendment claims. App. to *464 Brief in Opposition 393a.[6] In a comparably detailed decision, the Judicial Officer of the Department of Agriculture entirely reversed the ALJ. Wileman, along with 15 other handlers, then sought review of the Judicial Officer's decision by filing this action in the District Court pursuant to 7 U.S. C. 608c(15)(B). A number of enforcement actions brought by the Secretary to collect withheld assessments were consolidated with the review proceeding. Acting on cross-motions for summary judgment, the District Court upheld both marketing orders and entered judgment of $3.1 million in past due assessments against the handlers. In the Court of Appeals the handlers challenged the generic advertising provisions of the orders as violative of both the APA and the First Amendment. The court rejected the statutory challenge, concluding that the record contained substantial evidence justifying both the original decision to engage in generic advertising[7] and the continuation of the program. It explained: *465 "The Nectarine Administrative Committee and the Peach Commodity Committee engage in a careful process each year prior to and during their annual spring meetings in approving the advertising program for the upcoming season. Prior to the full committee meeting, the Subcommittee on Advertising and Promotion meets to review in detail the program developed by its staff. The staff in turn uses monthly reports on price trends, consumer interests, and general market conditions in the formation of the proposed advertising program. "[I]t is only because the handlers themselves, through the committees, recommend a budget with a generic advertising component that the program is renewed by the Secretary every year. In fact, in most years the recommendations have been unanimous. We cannot assume that the handlers—the parties with firsthand knowledge of the state of their industry—would make recommendations that have an adverse effect on their businesses. Of course, the interests of the voting committee members may not always coincide with those of every handler in the industry. However, this court has previously noted that the Supreme Court `upheld the constitutionality of the system despite the fact that it may produce results with which some growers or handlers will disagree.' Saulsbury Orchards and Almond Processing," Wileman Bros. & Elliott, The Court of Appeals concluded, however, that Government enforced contributions to pay for generic advertising violated the First Amendment rights of the handlers. Relying on an earlier Ninth Circuit decision that had cited our *466 decision in see Cal-Almond, the court began by stating that the "First Amendment right of freedom of speech includes a right not to be compelled to render financial support for others' speech." It then reviewed the generic advertising regulations under "the test for restrictions on commercial speech set out in Central Hudson Gas & Electric 566" Although it was satisfied that the Government interest in enhancing returns to peach and nectarine growers was substantial, it was not persuaded that the generic advertising passed either the second or third "prongs" of Central Hudson. With respect to the former, even though the generic advertising "undoubtedly" has increased peach and nectarine sales, the Government failed to prove that it did so more effectively than individualized The court also concluded that the program was not "narrowly tailored" because it did not give the handlers any credit for their own advertising and because California was the only State in which such programs were in place.[8] The Court of Appeals' disposition of the First Amendment claim is in conflict with a decision of the Court of Appeals for the Third Circuit that rejected a challenge to generic advertising of beef authorized by the Beef Promotion and Research Act of 1985, 7 U.S. C. 2901-2911. United Characterizing that statute as "legislation in furtherance of an ideologically neutral compelling state interest," and noting that the "Cattlemen's Board is authorized only to develop *467 a campaign to promote the product that the defendant himself has chosen to market," despite the plaintiff's objections to the content of the advertising,[9] the court found no violation of his First Amendment rights. We granted the Secretary's petition for certiorari to resolve the conflict, and now reverse. III In challenging the constitutionality of the generic advertising program in the Court of Appeals, respondents relied, in part, on their claimed disagreement with the content of some of the generic n. 6. The District Court had found no merit to this aspect of their claim,[10] and the Court of Appeals did not rely on it for its conclusion that the program was unconstitutional. Rather, the Court of Appeals invalidated the entire program on the theory that the program could not survive Central Hudson because the Government had failed to prove that generic advertising was more effective than individual advertising in increasing consumer demand for California nectarines, plums, and peaches. That holding did not depend at all on either the content of the advertising, or on the respondents' claimed disagreement with any particular message. Although *468 respondents have continued in this Court to argue about their disagreement with particular messages, those arguments, while perhaps calling into question the administration of portions of the program, have no bearing on the validity of the entire program.[11] For purposes of our analysis, we neither accept nor reject the factual assumption underlying the Court of Appeals' invalidation of the program—namely, that generic advertising may not be the most effective method of promoting the sale of these commodities. The legal question that we address is whether being compelled to fund this advertising raises a First Amendment issue for us to resolve, or rather is simply a question of economic policy for Congress and the Executive to resolve. *469 In answering that question we stress the importance of the statutory context in which it arises. California nectarines and peaches are marketed pursuant to detailed marketing orders that have displaced many aspects of independent business activity that characterize other portions of the economy in which competition is fully protected by the antitrust laws. The business entities that are compelled to fund the generic advertising at issue in this litigation do so as a part of a broader collective enterprise in which their freedom to act independently is already constrained by the regulatory scheme. It is in this context that we consider whether we should review the assessments used to fund collective advertising, together with other collective activities, under the standard appropriate for the review of economic regulation or under a heightened standard appropriate for the review of First Amendment issues. IV Three characteristics of the regulatory scheme at issue distinguish it from laws that we have found to abridge the freedom of speech protected by the First Amendment. First, the marketing orders impose no restraint on the freedom of any producer to communicate any message to any audience.[12] Second, they do not compel any person to engage in any actual or symbolic speech.[13] Third, they do not compel the producers to endorse or to finance any political *470 or ideological views.[14] Indeed, since all of the respondents are engaged in the business of marketing California nectarines, plums, and peaches, it is fair to presume that they agree with the central message of the speech that is generated by the generic program. Thus, none of our First Amendment jurisprudence provides any support for the suggestion that the promotional regulations should be scrutinized under a different standard from that applicable to the other anti competitive features of the marketing orders. Respondents advance several arguments in support of their claim that being required to fund the generic advertising program violates the First Amendment. Respondents argue that the assessments for generic advertising impinge on their First Amendment rights because they reduce the amount of money that producers have available to conduct their own This is equally true, however, of assessments to cover employee benefits, inspection fees, or any other activity that is authorized by a marketing order. The First Amendment has never been construed to require heightened scrutiny of any financial burden that has the incidental effect of constraining the size of a firm's advertising budget. The fact that an economic regulation may indirectly lead to a reduction in a handler's individual advertising budget does not itself amount to a restriction on speech. The Court of Appeals, perhaps recognizing the expansive nature of respondents' argument, did not rely on the claim that the assessments for generic advertising indirectly limit the extent of the handlers' own Rather, the Court of Appeals apparently accepted respondents' argument that the assessments infringe First Amendment rights because they constitute compelled speech. Our compelled speech case law, however, is clearly inapplicable to the regulatory scheme at issue here. The use of assessments to pay *471 for advertising does not require respondents to repeat an objectionable message out of their own mouths, cf. West Virginia Bd. of require them to use their own property to convey an antagonistic ideological message, cf. ; Pacific Gas & Elec. force them to respond to a hostile message when they "would prefer to remain silent," see or require them to be publicly identified or associated with another's message, cf. PruneYard Shopping Respondents are not required themselves to speak, but are merely required to make contributions for With trivial exceptions on which the court did not rely,[15] none of the generic advertising conveys any message with which respondents disagree. Furthermore, the advertising is attributed not to them, but to the California Tree Fruit Agreement or "California Summer Fruits." See, e. g., App. 530. Although this regulatory scheme may not compel speech as recognized by our case law, it does compel financial contributions that are used to fund As the Court of Appeals read our decision in Abood, just as the First Amendment prohibits compelled speech, it prohibits—at least without sufficient justification by the government—compelling an individual to "render financial support for others' speech." However, Abood, and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's "freedom of belief." We considered, in Abood, whether it was constitutional *472 for the State of Michigan to require government employees who objected to unions or union activities to contribute to an "agency shop" arrangement requiring all employees to pay union dues as a condition of employment. We held that compelled contributions to support activities related to collective bargaining were "constitutionally justified by the legislative assessment of the important contribution of the union shop" to labor relations. Relying on our compelled-speech cases, however, the Court found that compelled contributions for political purposes unrelated to collective bargaining implicated First Amendment interests because they interfere with the values lying at the "heart of the First Amendment[—]the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." ; see also Here, however, requiring respondents to pay the assessments cannot be said to engender any crisis of conscience. None of the advertising in this record promotes any particular message other than encouraging consumers to buy California tree fruit. Neither the fact that respondents may prefer to foster that message independently in order to promote and distinguish their own products, nor the fact that they think more or less money should be spent fostering it, makes this case comparable to those in which an objection rested on political or ideological disagreement with the content of the message. The mere fact that objectors believe their money is not being well spent "does not mean [that] they have a First Amendment complaint." Moreover, rather than suggesting that mandatory funding of expressive activities always constitutes compelled speech in violation of the First Amendment, our cases provide affirmative support for the proposition that assessments to fund a lawful collective program may sometimes be used to pay for speech over the objection of some members of the *473 group. Thus, in while we held that the cost of certain publications that were not germane to collective-bargaining activities could not be assessed against dissenting union members, we squarely held that it was permissible to charge them for those portions of "the Teachers' Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs and other miscellaneous matters." That holding was an application of the rule announced in Abood and further refined in a case involving bar association activities. As we pointed out in Keller, "Abood held that a union could not expend a dissenting individual's dues for ideological activities not `germane' to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity." This test is clearly satisfied in this case because (1) the generic advertising of California peaches and nectarines is unquestionably germane to the purposes of the marketing orders and, (2) in any event, the assessments are not used to fund ideological activities.[16] *474 We are not persuaded that any greater weight should be given to the fact that some producers do not wish to foster generic advertising than to the fact that many of them may well object to the marketing orders themselves because they might earn more money in an unregulated market. Respondents' criticisms of generic advertising provide no basis for concluding that factually accurate advertising constitutes an abridgment of anybody's right to speak freely. Similar criticisms might be directed at other features of the regulatory orders that impose restraints on competition that arguably disadvantage particular producers for the benefit of the entire market.[17] Although one may indeed question the wisdom of such a program, its debatable features are insufficient to warrant special First Amendment scrutiny. It was therefore error for the Court of Appeals to rely on Central Hudson for the purpose of testing the constitutionality of market order assessments for promotional [] V The Court of Appeals' decision to apply the Central Hudson test is inconsistent with the very nature and purpose of the collective action program at issue here. The Court of *475 Appeals concluded that the advertising program does not "directly advance" the purposes of the marketing orders because the Secretary had failed to prove that generic advertising is any more effective in stimulating consumer demand for the commodities than the advertising that might otherwise be undertaken by producers acting independently. We find this an odd burden of proof to assign to the administrator of marketing orders that reflect a policy of displacing unrestrained competition with Government supervised cooperative marketing programs. If there were no marketing orders at all to set maturity levels, size, quantity, and other features, competition might well generate greater production of nectarines, peaches, and plums. It may also be true that if there were no generic advertising, competition would generate even more advertising and an even larger consumer demand than does the cooperative program. But the potential benefits of individual advertising do not bear on the question whether generic advertising directly advances the statute's collectivist goals. Independent advertising would be primarily motivated by the individual competitor's interest in maximizing its own sales, rather than in increasing the overall consumption of a particular commodity. While the First Amendment unquestionably protects the individual producer's right to advertise its own brands, the statute is designed to further the economic interests of the producers as a group. The basic policy decision that underlies the entire statute rests on an assumption that in the volatile markets for agricultural commodities the public will be best served by compelling cooperation among producers in making economic decisions that would be made independently in a free market. It is illogical, therefore, to criticize any cooperative program authorized by this statute on the ground that competition would provide greater benefits than joint action. On occasion it is appropriate to emphasize the difference between policy judgments and constitutional adjudication. *476 Judges who have endorsed the view that the Sherman Act is a charter of economic liberty[19] naturally approach laws that command competitors to participate in joint ventures with a jaundiced eye. Doubts concerning the policy judgments that underlie many features of this legislation do not, however, justify reliance on the First Amendment as a basis for reviewing economic regulations. Appropriate respect for the power of Congress to regulate commerce among the States provides abundant support for the constitutionality of these marketing orders on the following reasoning. Generic advertising is intended to stimulate consumer demand for an agricultural product in a regulated market. That purpose is legitimate and consistent with the regulatory goals of the overall statutory scheme. See 602(1). At least a majority of the producers in each of the markets in which such advertising is authorized must be persuaded that it is effective, or presumably the programs would be discontinued.[20] Whether the benefits from the advertising justify its cost is a question that not only might be answered differently in different markets, but also involves the exercise of policy judgments that are better made by producers and administrators than by judges. As with other features of the marketing orders, individual producers may not share the views or the interests of others in the same market. But decisions that are made by the majority, if acceptable for other regulatory programs, should be equally so for promotional Perhaps more money may be at stake when a generic advertising program *477 is adopted than for other features of the cooperative endeavor, but that fact does not transform this question of business judgment into a constitutional issue. In sum, what we are reviewing is a species of economic regulation that should enjoy the same strong presumption of validity that we accord to other policy judgments made by Congress. The mere fact that one or more producers "do not wish to foster" generic advertising of their product is not a sufficient reason for overriding the judgment of the majority of market participants, bureaucrats, and legislators who have concluded that such programs are beneficial. The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Souter

dissenting

Glickman v. Wileman Brothers & Elliott, Inc.

1997-06-25

https://www.courtlistener.com/opinion/118139/glickman-v-wileman-brothers-elliott-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118139/

1996-086

The Court today finds no First Amendment right to be free of coerced subsidization of commercial speech, for two principal reasons. First, the Court finds no discernible element of speech in the implementation of the Government's marketing orders, beyond what it sees as "germane" to the undoubtedly valid, non speech elements of the orders. Second, the Court in any event takes the position that a person who is neither barred from saying what he wishes, nor subject to personal attribution of speech he dislikes, has no First Amendment objection to mandatory subsidization of speech unless it is ideological or political or contains a message with which the objecting person disagrees. I part company with the Court on each of these closely related points. The legitimacy of governmental regulation does not validate coerced subsidies for speech that the government cannot show to be reasonably necessary to implement the regulation, and the very reasons for recognizing that commercial speech falls within the scope of First Amendment protection likewise *478 justifies the protection of those who object to subsidizing it against their will. I therefore conclude that forced payment for commercial speech should be subject to the same level of judicial scrutiny as any restriction on communications in that category. Because I believe that the advertising scheme here fails that test, I respectfully dissent. I The nub of the Court's opinion is its reading of the line of cases following Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977): "Abood, and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, Abood merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's `freedom of belief.' " Ante, at 471 (quoting Abood, supra, at 235). While I certainly agree with the Court that a proper understanding of Abood is necessary for the disposition of this case (and will dwell on the scope of its holding at some length below), it seems to me that Abood appears more readily in its proper size if we begin our analysis with two more basic principles of First Amendment law: that speech as such is subject to some level of protection unless it falls within a category, such as obscenity, placing it beyond the Amendment's scope, and that protected speech may not be made the subject of coercion to speak or coercion to subsidize speech. A Even before we first recognized commercial speech protection in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976), we had stated a basic proposition of First Amendment protection, that "[a]ll *479 ideas having even the slightest redeeming social importance. .. have the full protection of the guaranties [of the First Amendment]," Roth v. United States, 354 U.S. 476, 484 (1957). This premise was later echoed in Virginia Bd. of Pharmacy, where we asked whether commercial speech "is so removed from any exposition of ideas, and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, that it lacks all protection." 425 U.S., at 762 (citations and internal quotation marks omitted). The answer, of course, was no. What stood against the claim of social unimportance for commercial speech was not only the consumer's interest in receiving information, id., at 763-764, but the commercial speaker's own economic interest in promoting his wares. "[W]e may assume that the advertiser's interest is a purely economic one. That hardly disqualifies him from protection under the First Amendment." Id., at 762. Indeed, so long as self-interest in providing a supply is as legitimate as the self-interest underlying an informed demand, the law could hardly treat the advertiser's economic stake as "utterly without redeeming social importance" and isolate the consumer's interest as the exclusive touchstone of commercial speech protection. Nor is the advertiser's legitimate interest onedimensional. While the value of a truthful representation of the product offered is central, advertising's persuasive function is cognizable, too. Like most advertising meant to stimulate demand, the promotions for California fruit at issue here do more than merely provide objective information about a product's availability or price; they exploit all the symbolic and emotional techniques of any modern ad campaign with messages often far removed from simple proposals to sell fruit.[1] "Speech has the capacity to convey *480 complex substance, yielding various insights and interpretations depending upon the identity of the listener or the reader and the context of its transmission. . . . The complex nature of expression is one reason why even so-called commercial speech has become an essential part of the public discourse the First Amendment secures." Florida Bar v. Went For It, Inc., 515 U.S. 618, 636 (1995) (Kennedy, J., dissenting). Since persuasion is an essential ingredient of the competition that our public law promotes with considerable effort, the rhetoric of advertising cannot be written off as devoid of value or beyond protection, any more than can its power to inform. Of course, that value may well be of a distinctly lower order than the importance of providing accurate factual information, and the inextricable linkage between advertising and underlying commercial transaction "may give [the government] a concomitant interest in the expression itself," Edenfield v. Fane, 507 U.S. 761, 767 (1993) (citation and internal quotation marks omitted); see also 44 Liquor mart, Inc. v. Rhode Island, 517 U.S. 484, 499 (1996) (opinion of Stevens, J.). But these considerations amount to nothing more than the premise justifying a merely moderate level of scrutiny for commercial speech regulations generally: "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Rubin v. Coors Brewing Co., 514 U.S. 476, 482 (1995) (citations and internal quotation marks omitted). B Since commercial speech is not subject to any categorical exclusion from First Amendment protection, and indeed is *481 protectible as a speaker's chosen medium of commercial enterprise, it becomes subject to a second First Amendment principle: that compelling cognizable speech officially is just as suspect as suppressing it, and is typically subject to the same level of scrutiny. In Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781 (1988), for example, the State argued that "the First Amendment interest in compelled speech is different [from] the interest in compelled silence," and ought therefore to merit a more "deferential test." Id., at 796. We rejected that argument out of hand: "There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees `freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." Id., at 796-797; see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 573 (1995) ("Since all speech inherently involves choices of what to say and what to leave unsaid, one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say" (citations and internal quotation marks omitted)); Wooley v. Maynard, 430 U.S. 705, 714 (1977) ("[T]he right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all"); West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 633 (1943) ("[I]nvoluntary affirmation c[an] be commanded only on even more immediate and urgent grounds than silence"). As a familiar corollary to the principle that what may not be suppressed may not be coerced, we have recognized (thus far, outside the context of commercial speech) that individuals have a First Amendment interest in freedom from compulsion to subsidize speech and other expressive activities *482 undertaken by private and quasi-private organizations.[2] We first considered this issue in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), in addressing the First Amendment claims of dissenting employees subject to an "agency-shop" agreement between their government employer and a union. The agreement required each employee to pay the union a "service fee" equal to the dues required of union members, but limited no one's right to speak separately and obliged no employee to join the union, personally espouse unionism, or participate in the union in any other way. Id., at 212. Thus, as in this case, the sole imposition upon nonmembers was the assessment to help pay for the union's activities. And yet, purely financial as the imposition was, we held that the union's use of dissenters' service fees for expressive purposes unrelated to collective bargaining violated the First Amendment rights of those employees. In so holding, Abood drew together several lines of First Amendment doctrine; after recognizing the parallels between expression per se and associating for expressive purposes, id., at 233-234, the Court relied on compelled-speech cases such as Barnette, supra, in concluding that just as the government may not (without a compelling reason) prohibit a person from contributing money to propagate ideas, neither may it force an individual to contribute money to support some group's distinctly expressive activities, id., at 234-235. We have repeatedly adhered to this reasoning in cases of compelled contributions to unions in agency shops, see, e. g., Lehnert v. Ferris Faculty Assn., 500 U.S. 507 (1991); Teachers v. Hudson, 475 U.S. 292 (1986); Ellis v. Railway Clerks, 466 U. S. *483 435 (1984) (statutory case); Machinists v. Street, 367 U.S. 740 (1961) (statutory case anticipating Abood ), and have followed the same rationale in holding that state-compelled dues to an integrated bar association may not constitutionally be used to advance political and ideological causes distinct from the core objectives of professional regulation, Keller v. State Bar of Cal., 496 U.S. 1 (1990). C The Court recognizes the centrality of the Abood line of authority for resolving today's case, but draws the wrong conclusions from it. Since Abood struck down the mandatory "service fee" only insofar as it funded the union's expression of support for "ideological causes not germane to its duties as collective-bargaining representative," 431 U.S., at 235; see also id., at 232, the Court reads Abood for the proposition that the First Amendment places no limits on government's power to force one individual to pay for another's speech, except when the speech in question both is ideological or political in character and is not germane to an otherwise lawful regulatory program. Ante, at 471-473.[3] 1 The Court's first mistaken conclusion lies in treating Abood as permitting any enforced subsidy for speech that is germane to permissible economic regulation, in the sense that it relates to the subject matter of the regulation and *484 tends to further its objectives. But Abood and its subsequent line of cases are not nearly so permissive as the Court makes out. In Abood, we recognized that even in matters directly related to collective bargaining, compulsory funding of union activities has an impact on employees' First Amendment interests, since the employees might disagree with positions taken by the union on issues such as the inclusion of abortion in a medical benefit plan, or negotiating no-strike agreements, or even the desirability of unionism in general. 431 U.S., at 222. To be sure, we concluded that any interference with such interests was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." Ibid.; see also Keller, supra, at 13-14 ("[T]he State's interest in regulating the legal profession and improving the quality of legal services" justifies "the compelled association [inherent in the] integrated bar"). But this was simply a way of saying that the government's objective of guaranteeing the opportunity for a union shop, the importance and legitimacy of which were already settled, see Abood, supra, at 217-232 (following Railway Employes v. Hanson, 351 U.S. 225 (1956), and Machinists v. Street, supra ), could not be attained without the incidental infringements of the interests in unfettered speech and association that petitioners there claimed. Collective bargaining, and related activities such as grievance arbitration and contract administration, are part and parcel of the very economic transactions between employees and employer that Congress can regulate, and which it could not regulate without these potential impingements on the employees' First Amendment interests. Abood is thus a specific instance of the general principle that government retains its full power to regulate commercial transactions directly, despite elements of speech and association inherent in such transactions. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978) (commercial conduct may be regulated without offending First Amendment *485 despite use of language); Roberts v. United States Jaycees, 468 U.S. 609, 634 (1984) (opinion of O'Connor, J., concurring in part and concurring in judgment) (in contrast to right of expressive association, "there is only minimal constitutional protection of the freedom of commercial association," because "the State is free to impose any rational regulation on the commercial transaction itself"); see also New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 13 (1988) (constitutional right of expressive association is not implicated by every instance in which individuals choose their associates); Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (same); Ellis v. Railway Clerks, 466 U. S., at 456 (funding of union social activities, as opposed to expressive activities, has minimal connection with First Amendment rights). Decisions postdating Abood have made clear, however, that its limited sanction for laws affecting First Amendment interests may not be expanded to cover every imposition that is in some way "germane" to a regulatory program in the sense of relating sympathetically to it. Rather, to survive scrutiny under Abood, a mandatory fee must not only be germane to some otherwise legitimate regulatory scheme; it must also be justified by vital policy interests of the government and not add significantly to the burdening of free speech inherent in achieving those interests. Lehnert v. Ferris Faculty Assn., 500 U. S., at 519; accord, Ellis, supra, at 456. Thus, in Lehnert eight Justices concluded that a teachers' union could not constitutionally charge objecting employees for a public relations campaign meant to raise the esteem for teachers in the public mind and so increase the public's willingness to pay for public education. See 500 U.S., at 528-529 (plurality opinion); id., at 559 (Scalia, J., concurring in judgment in part and dissenting in part). "Expression of this kind extends beyond the negotiation and grievanceresolution contexts and imposes a substantially greater burden upon First Amendment rights than do [collectivebargaining *486 functions]." Id., at 528-529 (plurality opinion). The advertising campaigns here suffer from the same defect as the public relations effort to stimulate demand for the teachers' product: a local union can negotiate a particular contract for the benefit of a shop's whole labor force without globally espousing the virtues of teachers, and (in the absence of further explanation) produce markets can be directly regulated in the interest of stability and growth without espousing the virtues of fruit. They were, indeed, for a quarter century, and still are under the many agricultural marketing orders that authorize no advertising schemes. See infra, at 494-499. In each instance, the challenged burden on dissenters' First Amendment rights is substantially greater than anything inherent in regulation of the commercial transactions. Thus, the Abood line does not permit this program merely because it is germane to the marketing orders.[4] *487 2 The Court's second misemployment of Abood and its successors is its reliance on them for the proposition that when government neither forbids speech nor attributes it to an objector, it may compel subsidization for any objectionable message that is not political or ideological. But this, of course, is entirely at odds with the principle that speech significant enough to be protected at some level is outside the government's power to coerce or to support by mandatory subsidy without further justification. Supra, at 480-483. Since a commercial speaker (who does not mislead) may generally promote commerce as he sees fit, the government requires some justification (such as its necessity for otherwise valid regulation) before it may force him to subsidize commercial speech to which he objects. While it is perfectly true that cases like Abood and Keller did involve political or ideological speech, and the Court made reference to that character in explaining the gravity of the First Amendment interests at stake, nothing in those cases suggests that government has free rein to compel funding of nonpolitical speech (which might include art,[5] for example, as well as commercial advertising). While an individual's First Amendment interest in commercial speech, and thus the government's burden in justifying a regulation of it, may well be less weighty than the interest in ideological speech, Abood continues to stand for the proposition that being compelled to make expenditures *488 for protected speech "works no less an infringement of . .. constitutional rights" than being prohibited from making such expenditures. 431 U.S., at 234. The fact that no prior case of this Court has applied this principle to commercial and nonideological speech simply reflects the fortuity that this is the first commercial speech subsidy case to come before us. 3 An apparent third ground for the Court's conclusion that the First Amendment is not implicated here is its assumption that respondents do not disagree with the advertisements they object to subsidizing. See ante, at 470, 471. But this assumption is doubtful and would be beside the point even if true. As the Court itself notes, ante, at 467-468, and n. 11, respondents do claim to disagree with the messages of some promotions they are being forced to fund: some of the ads promote specific varieties of plums, peaches, and nectarines marketed by respondents' competitors but not by respondents; other ads characterize California tree fruits as a generic and thus fungible commodity, whereas respondents believe that their produce is superior to most grown in California. While these points of disagreement may seem trivial to the Court, they in fact relate directly to a vendor's recognized First Amendment interest in touting his wares as he sees fit, so long as he does not mislead. Supra, at 479. Whether the "central message," ante, at 470, of the generic advertising is that all California peaches, plums, and nectarines are equally good, or that only the varieties and characteristics featured in the advertisements are desirable, respondents do indeed disagree with that message. In any event, the requirement of disagreement finds no legal warrant in our compelled-speech cases. In Riley, for example, we held that the free-speech rights of charitable solicitors were infringed by a law compelling statements of fact with which the objectors could not, and did not profess to, disagree. See 487 U.S., at 797-798. See also Hurley, *489 515 U. S., at 573 ("[The] general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid . . ."); Barnette, 319 U. S., at 635 (if the Free Speech Clause bars the government from making the flag salute a legal duty, nonconformist beliefs are not required to exempt one from saluting). Indeed, the Abood cases themselves protect objecting employees from being forced to subsidize ideological union activities unrelated to collective bargaining, without any requirement that the objectors declare that they disagree with the positions espoused by the union. See, e. g., Teachers v. Hudson, 475 U. S., at 301-302; Abood, 431 U. S., at 234. Requiring a profession of disagreement is likewise at odds with our holding two Terms ago that no articulable message is necessary for expression to be protected, Hurley, supra, at 569; protection of speech is not limited to clear-cut propositions subject to assent or contradiction, but covers a broader sphere of expressive preference. What counts here, then, is not whether respondents fail to disagree with the generalized message of the generic ads that California fruit is good, but that they do indeed deny that the general message is as valuable and worthy of their support as more particular claims about the merits of their own brands. One need not "disagree" with an abstractionist when buying a canvas from a representational painter; one merely wishes to support a different act of expression. D The Secretary of Agriculture has a further argument for minimizing or eliminating scrutiny of this subsidization mandate, which deserves some mention even though the Court does not adopt it. The Secretary calls for lesser scrutiny of forced payments for truthful advertising and promotion than for restrictions on commercial speech, on the ground that the effect of compelled funding is to increase the sum of information to the consuming public. This argument rests, however, *490 on the assumption that regulation of commercial speech is justified solely or largely on preservation of public access to truthful information, an assumption we have already seen to be inaccurate. Supra, at 478-480. Truth is indeed a justifiable objective of commercial speech protection, but so is non misleading persuasion directed to the advertiser's own choice of what to promote. Although not cited by the Secretary, the closest pass at authority for his limited rationale of commercial speech protection is Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), our only examination of a commercial speech mandate before today. The state law there required disclosures about the method of calculating a contingent fee when legal representation on that basis was advertised. In speaking of the objecting lawyer's comparatively modest interest in challenging the state requirement, we referred to protection of commercial speech as "justified principally by the value to consumers of the information such speech provides . . . ." Id., at 651 (citation omitted); see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 765, 770; Rubin v. Coors Brewing Co., 514 U. S., at 481. But this proposition will not bear the weight of the Government's position. We said "principally," not exclusively, and proceeded to uphold the state requirement not because a regulation adding to public information is immune from scrutiny, but because the mandate at issue bore a reasonable relation to the "State's interest in preventing deception of consumers," 471 U.S., at 651, who might otherwise be ignorant of the real terms on which the advertiser intended to do business. Zauderer thereby reaffirmed a long standing preference for disclosure requirements over outright bans, as more narrowly tailored cures for the potential of commercial messages to mislead by saying too little. See id., at 651-652, n. 14; see also Hurley, supra, at 573; Riley, supra, at 796, n. 9; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 *491 U. S. 557, 565 (1980); Virginia Bd. of Pharmacy, supra, at 771-772. But however long the pedigree of such mandates may be, and however broad the government's authority to impose them, Zauderer carries no authority for a mandate unrelated to the interest in avoiding misleading or incomplete commercial messages. II For the reasons discussed above, none of the Court's grounds suffices for discounting respondents' interests in expression here and treating these compelled advertising schemes as regulations of purely economic conduct instead of commercial speech. I would therefore adhere to the principle laid down in our compelled-speech cases: laws requiring an individual to engage in or pay for expressive activities are reviewed under the same standard that applies to laws prohibiting one from engaging in or paying for such activities. Under the test for commercial speech, the law may be held constitutional only if (1) the interest being pursued by the government is substantial, and (2) the regulation directly advances that interest and (3) is narrowly tailored to serve it. Central Hudson, supra, at 566.[6] The burden is on the *492 government. Edenfield v. Fane, 507 U. S., at 770; Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989). In this case, the Secretary has failed to establish that the challenged advertising programs satisfy any of these three prongs of the Central Hudson test. A The express purposes of the Agricultural Marketing Agreement Act of 1937 (AMAA or Act), 7 U.S. C. § 601 et seq., including the advertising programs established under it, are to stabilize markets for covered agricultural products and maintain the prices received by farmers. §§ 602(1), (4); see also Federal Agriculture Improvement and Reform Act of 1996 (FAIR Act) §§ 501(b)(1), (3), Pub. L. 104-127, 110 Stat. 888, 1030 (finding by Congress that the purpose of agricultural commodity promotion laws is to maintain and expand the market for covered commodities).[7] It is doubtless true that at a general level these are substantial government interests, and unless there were some reason to doubt that undue market instability or income fluctuation has in fact affected a given segment of the economy, governmental *493 efforts to address such problems would require little to satisfy the first Central Hudson criterion that a substantial government interest be the object of the regulation. Thus, if the Government were to attack these problems across an interstate market for a given agricultural commodity or group of them, the substantiality of the national interest would not be open to apparent question, and the sole issues under Central Hudson would seem to be whether the means chosen were sufficiently direct and well tailored. But when the government's program targets expression in only a narrow band of a broad spectrum of similar market activities in which its interests appear to be at stake, a question naturally does arise. For the arbitrariness or under inclusiveness of the scheme chosen by the government may well suggest that the asserted interests either are not pressing or are not the real objects animating the restriction on speech. See Rubin v. Coors Brewing Co., 514 U. S., at 489 ("[E]xemptions and inconsistencies" in alcohol labeling ban "bring into question the purpose of the . . . ban," such that it does not survive the Central Hudson test); City of Ladue v. Gilleo, 512 U.S. 43, 52-53 (1994) ("Exemptions from an otherwise legitimate regulation of a medium of speech . . . may diminish the credibility of the government's rationale for restricting speech in the first place"); Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424-426 (1993) (same); Florida Star v. B. J. F., 491 U.S. 524, 540 (1989) ("[T]he facial under inclusiveness" of a regulation of speech "raises serious doubts about whether Florida is, in fact, serving, with this statute, the significant interests" invoked in support of it). Under such circumstances, the government's obligation to establish the empirical reality of the problems it purports to be addressing, see Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664 (1994); Edenfield v. Fane, supra, at 770-771, requires a sensible reason for drawing the line between those instances in which the government burdens First Amendment freedom in the name of the asserted interest and those in which it does not. *494 Here, the AMAA's authorization of compelled advertising programs is so random and so randomly implemented, in light of the Act's stated purposes, as to unsettle any inference that the Government's asserted interest is either substantial or even real. First, the Act authorizes paid advertising programs in marketing orders for 25 listed fruits, nuts, vegetables, and eggs, but not for any other agricultural commodity. See 7 U.S. C. § 608c(6)(I).[8] The list includes onions but not garlic, tomatoes but not cucumbers, Tokay grapes but not other grapes, and so on. The selection is puzzling. The only thing the limited list unambiguously shows is that a need for promotional control does not go hand-in-hand with a need for market and economic stability, since the authorization for marketing orders bears no such narrow restriction to specific types of produce. But no general criterion for selection is stated in the text, and neither Congress nor the Secretary has so much as suggested that such a criterion exists. Instead, the legislative history shows that from time to time Congress has simply amended the Act to add particular commodities to the list at the request of interested producers or handlers, without ever explaining why compelled *495 advertising programs were necessary for the specific produce chosen and not others.[9] The legislative history for the bill authorizing paid advertising programs for plums, nectarines, and several other commodities is a good case on point. The record indicates merely that "[o]ver the past several years, numerous commodity groups have come to the Congress and asked for authority to provide for [market development and advertising] activities under the terms of their agreement and it has always been granted. This bill combines several such individual requests made by various producer groups operating under marketing agreements or orders." H. R. Rep. No. 89-846, 89th Cong., 1st Sess., 2 (1965). A letter from the Acting Secretary of Agriculture appended to the cited House Report similarly accounts for the choice of covered products solely by reference to grower and handler interest. Id., at 3-4. Or, again, the legislative history of the amendment adding "California-grown peaches" to the list refers only to the view of the Department of Agriculture *496 that "any fruit or vegetable commodity group which actively supports the development of a promotion program by this means should be given an opportunity to do so." S. Rep. No. 92-295, p. 2 (1971). Nor do the proposed rulemakings for authorizing advertising programs in marketing orders carry findings that might explain why such programs might be needed for the specified commodities but not others; the announcements rely instead on a "consensus of the industry . . . that promotional activities . . . have been beneficial in increasing demand," 36 Fed. Reg. 8736 (1971) (plums); see also 41 Fed. Reg. 14376-14377 (1976) (peaches).[10] Of course, when government goes no further than regulating the underlying economic activity, this sort of piecemeal legislation in answer to expressions of interest by affected parties is plainly permissible, short of something so arbitrary as to fail the rational basis test. See, e. g., Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-489 (1955). But when speech is at stake, the government fails to carry its burden of showing a substantial interest when it does nothing more than refer to a "consensus" within a limited interest group that wants the regulation. Instead, the erratic pattern of regulation itself places the reality of any public or governmental interest in question, and a correlation with nothing more than the priorities of particular interest groups gives no reassuring answer.[11] *497 A second element of the arbitrary in this statutory and regulatory scheme inheres in the geographical limitations on the marketing orders that include the advertising programs challenged in this case, which apply only to peaches, plums, and nectarines grown in California, unaccompanied by counterparts for advertising the same commodities grown elsewhere. Some geographical restriction, it must be said, follows from the general provision of the AMAA limiting marketing orders to the smallest production or marketing area practicable and consistent with the policy of the Act. See 7 U.S. C. § 608c(11)(B). But this provision merely explains why a substantial governmental interest in advertising a type of produce would have to be manifested in as many orders under the AMAA as there are defined production or marketing areas; it does nothing to explain the oddity that a Government interest worth vindicating should occur within such geographically select boundaries and nowhere else, or to negate the suggestion of the evidence already mentioned, that the Government's asserted interest is nothing more than the preference of a local interest group. The oddity is most pronounced in the instance of peaches, since the statute itself authorizes forced advertising only in marketing orders for "California-grown peaches," not in orders for peaches grown anywhere else in the country. § 608c(6)(I). Although California is the biggest peachgrowing State, more than 30 others also grow peaches commercially and together typically account for about half of the *498 national crop, and roughly two-thirds of the peaches sold fresh. See App. 389; U. S. Dept. of Agriculture, Agricultural Statistics, 1995-96, p. V-23 (Table 294). Yet the nonCalifornia peaches are utterly ignored in the Government's promotional orders. The challenged advertising campaign for "California Summer Fruits," running in markets throughout the United States and in Canada, see App. 341— 343, 477-479, does not proclaim simply that peaches or the other fruits are good things. Rather, as the Secretary tells us, the advertising program "promotes California fruit as unique." Brief for Petitioner 31. It may or may not be, but promoting a crop from one State at the expense of essentially the same thing grown in the others reveals nothing about a substantial national interest justifying the National Government in restricting speech. Without more, the most reasonable inference is not of a substantial Government interest, but effective politics on the part of producers who see the chance to spread their advertising costs. Nothing more appears.[12] The Secretary makes no attempt to explain how the Act's geographical scope restrictions relate to the asserted goals of the advertising programs. The general restriction of marketing orders to the smallest practicable area has been part of the Act since it became law, long before Congress permitted compelled advertising, the authorization for which was simply grafted onto the existing Act as a convenient vehicle for the funding schemes. See n. 9, supra; see also S. Rep. No. 92-295, supra, at 2 (letter from Department of Agriculture indicating that the AMAA "could provide the facility for" financing commodity advertising programs). *499 Nor does any explanation appear for restricting peach advertising programs to California produce. Without some explanation, one would expect something quite different, that a compelled advertising program of the National Government intended to increase consumer demand for an agricultural commodity would apply to produce grown throughout the land. Indeed, in recently enacting the FAIR Act, which authorizes compulsory advertising programs for all agricultural commodities on a national basis (but also leaves the separate provisions of the AMAA intact, see § 524, 110 Stat. 1047), Congress specifically found that "[t]he cooperative development, financing, and implementation of a coordinated national program of research, promotion, and information regarding agricultural commodities are necessary to maintain and expand existing markets and to develop new markets for these commodities." § 512(a)(7), id., at 1033 (emphasis added); see also § 514(a)(2), id., at 1035 ("Each order issued under this section shall be national in scope"). The AMAA, of course, actually prohibits orders of national scope. In sum, these advertising schemes come with a statutory text and regulatory history so remote from the Government's asserted interests as to undermine the reality, let alone the substantiality, of the claims put forward by the Secretary in attempting to satisfy Central Hudson `s first requirement. B Even if the Secretary could establish a sufficiently substantial interest, he would need also to show how the compelled advertising programs directly advance that interest, that is, how the schemes actually contribute to stabilizing agricultural markets and maintaining farm income by stimulating consumer demand. To show this required causation, the Secretary relies on cases concerning governmental bans on particular advertising content, where we have accepted the unremarkable presumption that advertising actually works to increase consumer demand, so that limiting advertising *500 tends to soften it. See United States v. Edge Broadcasting Co., 509 U.S. 418, 428 (1993); Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U.S. 328, 341-342 (1986); Central Hudson, 447 U. S., at 569. This presumption is not, however, automatically convertible into support for the Secretary here. In the cases mentioned, the question has been whether some advertising (in the absence of the government's ban) would be more effective in stimulating demand than no advertising (due to the ban). Here, in contrast, the causal question of direct advancement does not involve comparing the effectiveness of something with nothing, for even without the coercive promotional schemes there would be some voluntary advertising. Thus, the question here requires a comparison of the effectiveness of advertising under the Government's program with the effectiveness of whatever advertising would likely exist without it.[13] For this purpose, the Secretary correctly notes that the effectiveness of the Government's regulation must be viewed overall, considering the market behavior of growers and handlers generally, not just in its isolated application to one or a few individuals such as respondents. Edge Broadcasting, supra, at 427. The Secretary therefore argues that though respondents have voiced the desire to do more individual advertising if the system of mandatory assessments were ended, other handlers who benefit from the Government's *501 program might well become "free riders" if promotion were to become wholly voluntary, to the point of cutting the sum total of advertising done. That might happen. It is also reasonably conceivable, though, that pure self-interest would keep the level of voluntary advertising high enough that the mandatory program could only be seen as affecting the details of the ads or shifting their costs, in either event without effect on market stability or income to producers as a group.[14] We, of course, do not know, but these possibilities alone should be fatal to the Government here, which has the burden to establish the factual justification for ordering a subsidy for commercial speech. Mere speculation about one or another possibility does not carry the burden, see Turner Broadcasting System, 512 U. S., at 664; Edenfield v. Fane, 507 U. S., at 770-771, and the Government has to show that its mandatory scheme appreciably increases the total amount of advertising for a commodity or somehow does a better job of sparking the right level of consumer demand than a wholly voluntary system would. There is no evidence of this in the record here. C Finally, a regulation of commercial speech must be narrowly tailored to achieving the government's interests; there must be a "`fit' between the legislature's ends and the means chosen to accomplish those ends,—a fit . . . that represents not necessarily the single best disposition but one whose *502 scope is in proportion to the interest served." Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S., at 480 (citations and internal quotation marks omitted). This sense of fitness is not precise, to be sure, but it rules out a regulation if "far less restrictive and more precise means" are available. Id., at 479 (internal quotation marks omitted). Respondents argue that the mandatory advertising schemes for California peaches, plums, and nectarines fail this narrow tailoring requirement, because they deny handlers any credit toward their assessments for some or all of their individual advertising expenditures. The point is well taken. On its face, at least, a credit system would be a far less restrictive and more precise way to achieve the Government's stated interests, eliminating as it would much of the burden on respondents' speech without diminishing the total amount of advertising for a particular commodity. Indeed, the remarkable thing is that the AMAA itself provides for exactly such credits for individual advertising expenditures under marketing orders for almonds, filberts, raisins, walnuts, olives, and Florida Indian River grapefruit, but not for other commodities. 7 U.S. C. § 608c(6)(I). The Secretary contends, however, that the purpose of individual "branded" advertising is to increase the market share of a single handler, and so is at odds with the purpose of the Government's mandatory program, which is to expand the overall size of the market through the use of "generic" advertising for a commodity generally. See also FAIR Act §§ 501(b)(6), (7), 110 Stat. 1030-1031 (congressional finding of same). Perhaps so, but that does not tell us what to make of the credit for, say, private raisin advertising. It would be hard to imagine more effectively "branded" advertising than promotions for Sun-Maid raisins, but the statute would allow Sun-Maid a credit. Why would that be consistent with the Government's generic objective, but a credit for respondents' nectarine ads not be? The Government gives us no answer. Without some further explanation, the statute on raisin advertising *503 seems to reflect a conclusion that could reasonably be drawn after examining some of the "branded" advertising in the record before us. A consumer galvanized by respondents' depiction of "Mr. Plum," App. 542, might turn down a plum by any other name, but I doubt it.[15] I acknowledge that in implementing a credit program for individual advertising in an otherwise valid compulsory program, the Government would need substantial leeway in determining whether such expenditures do in fact further the goal of expanding markets generally. But where, as here, no particular evaluation has been made, and the statute dealing with other fruit apparently assumes that some private advertising does serve the common good, and everything else is left to assertion, there could be no finding that a program completely denying credits for all individual advertising *504 expenditures is narrowly tailored to an interest in the stability or expansion of overall markets for a commodity. * * * Although the government's obligation is not a heavy one in Central Hudson and the cases that follow it, we have understood it to call for some showing beyond plausibility, and there has been none here. I would accordingly affirm the judgment of the Ninth Circuit.

The Court today finds no First Amendment right to be free of coerced subsidization of commercial speech, for two principal reasons. First, the Court finds no discernible element of speech in the implementation of the Government's marketing orders, beyond what it sees as "germane" to the undoubtedly valid, non speech elements of the orders. Second, the Court in any event takes the position that a person who is neither barred from saying what he wishes, nor subject to personal attribution of speech he dislikes, has no First Amendment objection to mandatory subsidization of speech unless it is ideological or political or contains a message with which the objecting person disagrees. I part company with the Court on each of these closely related points. The legitimacy of governmental regulation does not validate coerced subsidies for speech that the government cannot show to be reasonably necessary to implement the regulation, and the very reasons for recognizing that commercial speech falls within the scope of First Amendment protection likewise *478 justifies the protection of those who object to subsidizing it against their will. I therefore conclude that forced payment for commercial speech should be subject to the same level of judicial scrutiny as any restriction on communications in that category. Because I believe that the advertising scheme here fails that test, I respectfully dissent. I The nub of the Court's opinion is its reading of the line of cases following : ", and the cases that follow it, did not announce a broad First Amendment right not to be compelled to provide financial support for any organization that conducts expressive activities. Rather, merely recognized a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with one's `freedom of belief.' " Ante, at 471 (quoting ). While I certainly agree with the Court that a proper understanding of is necessary for the disposition of this case (and will dwell on the scope of its holding at some length below), it seems to me that appears more readily in its proper size if we begin our analysis with two more basic principles of First Amendment law: that speech as such is subject to some level of protection unless it falls within a category, such as obscenity, placing it beyond the Amendment's scope, and that protected speech may not be made the subject of coercion to speak or coercion to subsidize speech. A Even before we first recognized commercial speech protection in Virginia Bd. of we had stated a basic proposition of First Amendment protection, that "[a]ll *47 ideas having even the slightest redeeming social importance. have the full protection of the guaranties [of the First Amendment]," This premise was later echoed in Virginia Bd. of where we asked whether commercial speech "is so removed from any exposition of ideas, and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, that it lacks all protection." The answer, of course, was no. What stood against the claim of social unimportance for commercial speech was not only the consumer's interest in receiving information, but the commercial speaker's own economic interest in promoting his wares. "[W]e may assume that the advertiser's interest is a purely economic one. That hardly disqualifies him from protection under the First Amendment." Indeed, so long as self-interest in providing a supply is as legitimate as the self-interest underlying an informed demand, the law could hardly treat the advertiser's economic stake as "utterly without redeeming social importance" and isolate the consumer's interest as the exclusive touchstone of commercial speech protection. Nor is the advertiser's legitimate interest onedimensional. While the value of a truthful representation of the product offered is central, advertising's persuasive function is cognizable, too. Like most advertising meant to stimulate demand, the promotions for California fruit at issue here do more than merely provide objective information about a product's availability or price; they exploit all the symbolic and emotional techniques of any modern ad campaign with messages often far removed from simple proposals to sell fruit.[1] "Speech has the capacity to convey * complex substance, yielding various insights and interpretations depending upon the identity of the listener or the reader and the context of its transmission. The complex nature of expression is one reason why even so-called commercial speech has become an essential part of the public discourse the First Amendment secures." Florida Since persuasion is an essential ingredient of the competition that our public law promotes with considerable effort, the rhetoric of advertising cannot be written off as devoid of value or beyond protection, any more than can its power to inform. Of course, that value may well be of a distinctly lower order than the importance of providing accurate factual information, and the inextricable linkage between advertising and underlying commercial transaction "may give [the government] a concomitant interest in the expression itself," ; see also 44 Liquor mart, 517 U.S. But these considerations amount to nothing more than the premise justifying a merely moderate level of scrutiny for commercial speech regulations generally: "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." B Since commercial speech is not subject to any categorical exclusion from First Amendment protection, and indeed is *481 protectible as a speaker's chosen medium of commercial enterprise, it becomes subject to a second First Amendment principle: that compelling cognizable speech officially is just as suspect as suppressing it, and is typically subject to the same level of scrutiny. In for example, the State argued that "the First Amendment interest in compelled speech is different [from] the interest in compelled silence," and ought therefore to merit a more "deferential test." We rejected that argument out of hand: "There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees `freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." -77; see also ("Since all speech inherently involves choices of what to say and what to leave unsaid, one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say" ); ; West Virginia Bd. of As a familiar corollary to the principle that what may not be suppressed may not be coerced, we have recognized (thus far, outside the context of commercial speech) that individuals have a First Amendment interest in freedom from compulsion to subsidize speech and other expressive activities * undertaken by private and quasi-private organizations.[2] We first considered this issue in in addressing the First Amendment claims of dissenting employees subject to an "agency-shop" agreement between their government employer and a union. The agreement required each employee to pay the union a "service fee" equal to the dues required of union members, but limited no one's right to speak separately and obliged no employee to join the union, personally espouse unionism, or participate in the union in any other way. Thus, as in this case, the sole imposition upon nonmembers was the assessment to help pay for the union's activities. And yet, purely financial as the imposition was, we held that the union's use of dissenters' service fees for expressive purposes unrelated to collective bargaining violated the First Amendment rights of those employees. In so holding, drew together several lines of First Amendment doctrine; after recognizing the parallels between expression per se and associating for expressive purposes, the Court relied on compelled-speech cases such as in concluding that just as the government may not (without a compelling reason) prohibit a person from contributing money to propagate ideas, neither may it force an individual to contribute money to support some group's distinctly expressive activities, We have repeatedly adhered to this reasoning in cases of compelled contributions to unions in agency shops, see, e. g., ; ; v. Railway 466 U. S. *483 435 (statutory case); (statutory case anticipating ), and have followed the same rationale in holding that state-compelled dues to an integrated bar association may not constitutionally be used to advance political and ideological causes distinct from the core objectives of professional regulation, C The Court recognizes the centrality of the line of authority for resolving today's case, but draws the wrong conclusions from it. Since struck down the mandatory "service fee" only insofar as it funded the union's expression of support for "ideological causes not germane to its duties as collective-bargaining representative," 431 U.S., ; see also the Court reads for the proposition that the First Amendment places no limits on government's power to force one individual to pay for another's speech, except when the speech in question both is ideological or political in character and is not germane to an otherwise lawful regulatory program. Ante, at 471-473.[3] 1 The Court's first mistaken conclusion lies in treating as permitting any enforced subsidy for speech that is germane to permissible economic regulation, in the sense that it relates to the subject matter of the regulation and * tends to further its objectives. But and its subsequent line of cases are not nearly so permissive as the Court makes out. In we recognized that even in matters directly related to collective bargaining, compulsory funding of union activities has an impact on employees' First Amendment interests, since the employees might disagree with positions taken by the union on issues such as the inclusion of abortion in a medical benefit plan, or negotiating no-strike agreements, or even the desirability of unionism in general. To be sure, we concluded that any interference with such interests was "constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress." Ibid.; see also But this was simply a way of saying that the government's objective of guaranteeing the opportunity for a union shop, the importance and legitimacy of which were already settled, see and ), could not be attained without the incidental infringements of the interests in unfettered speech and association that petitioners there claimed. Collective bargaining, and related activities such as grievance arbitration and contract administration, are part and parcel of the very economic transactions between employees and employer that Congress can regulate, and which it could not regulate without these potential impingements on the employees' First Amendment interests. is thus a specific instance of the general principle that government retains its full power to regulate commercial transactions directly, despite elements of speech and association inherent in such transactions. See ; (in contrast to right of expressive association, "there is only minimal constitutional protection of the freedom of commercial association," because "the State is free to impose any rational regulation on the commercial transaction itself"); see also New York State Club ; ; v. Railway 466 U. S., at Decisions postdating have made clear, however, that its limited sanction for laws affecting First Amendment interests may not be expanded to cover every imposition that is in some way "germane" to a regulatory program in the sense of relating sympathetically to it. Rather, to survive scrutiny under a mandatory fee must not only be germane to some otherwise legitimate regulatory scheme; it must also be justified by vital policy interests of the government and not add significantly to the burdening of free speech inherent in achieving those interests. ; accord, at Thus, in Lehnert eight Justices concluded that a teachers' union could not constitutionally charge objecting employees for a public relations campaign meant to raise the esteem for teachers in the public mind and so increase the public's willingness to pay for public education. See -52 ; "Expression of this kind extends beyond the negotiation and grievanceresolution contexts and imposes a substantially greater burden upon First Amendment rights than do [collectivebargaining *486 functions]." The advertising campaigns here suffer from the same defect as the public relations effort to stimulate demand for the teachers' product: a local union can negotiate a particular contract for the benefit of a shop's whole labor force without globally espousing the virtues of teachers, and (in the absence of further explanation) produce markets can be directly regulated in the interest of stability and growth without espousing the virtues of fruit. They were, indeed, for a quarter century, and still are under the many agricultural marketing orders that authorize no advertising schemes. See infra, at 44-. In each instance, the challenged burden on dissenters' First Amendment rights is substantially greater than anything inherent in regulation of the commercial transactions. Thus, the line does not permit this program merely because it is germane to the marketing orders.[4] *487 2 The Court's second misemployment of and its successors is its reliance on them for the proposition that when government neither forbids speech nor attributes it to an objector, it may compel subsidization for any objectionable message that is not political or ideological. But this, of course, is entirely at odds with the principle that speech significant enough to be protected at some level is outside the government's power to coerce or to support by mandatory subsidy without further Since a commercial speaker (who does not mislead) may generally promote commerce as he sees fit, the government requires some justification (such as its necessity for otherwise valid regulation) before it may force him to subsidize commercial speech to which he objects. While it is perfectly true that cases like and did involve political or ideological speech, and the Court made reference to that character in explaining the gravity of the First Amendment interests at stake, nothing in those cases suggests that government has free rein to compel funding of nonpolitical speech (which might include art,[5] for example, as well as commercial advertising). While an individual's First Amendment interest in commercial speech, and thus the government's burden in justifying a regulation of it, may well be less weighty than the interest in ideological speech, continues to stand for the proposition that being compelled to make expenditures *488 for protected speech "works no less an infringement of constitutional rights" than being prohibited from making such expenditures. The fact that no prior case of this Court has applied this principle to commercial and nonideological speech simply reflects the fortuity that this is the first commercial speech subsidy case to come before us. 3 An apparent third ground for the Court's conclusion that the First Amendment is not implicated here is its assumption that respondents do not disagree with the advertisements they object to subsidizing. See ante, at 470, 471. But this assumption is doubtful and would be beside the point even if true. As the Court itself notes, ante, at 467-468, and n. 11, respondents do claim to disagree with the messages of some promotions they are being forced to fund: some of the ads promote specific varieties of plums, peaches, and nectarines marketed by respondents' competitors but not by respondents; other ads characterize California tree fruits as a generic and thus fungible commodity, whereas respondents believe that their produce is superior to most grown in California. While these points of disagreement may seem trivial to the Court, they in fact relate directly to a vendor's recognized First Amendment interest in touting his wares as he sees fit, so long as he does not mislead. Whether the "central message," ante, at 470, of the generic advertising is that all California peaches, plums, and nectarines are equally good, or that only the varieties and characteristics featured in the advertisements are desirable, respondents do indeed disagree with that message. In any event, the requirement of disagreement finds no legal warrant in our compelled-speech cases. In for example, we held that the free-speech rights of charitable solicitors were infringed by a law compelling statements of fact with which the objectors could not, and did not profess to, disagree. See -78. See also * 515 U. S., at ; Indeed, the cases themselves protect objecting employees from being forced to subsidize ideological union activities unrelated to collective bargaining, without any requirement that the objectors declare that they disagree with the positions espoused by the union. See, e. g., -302; Requiring a profession of disagreement is likewise at odds with our holding two Terms ago that no articulable message is necessary for expression to be protected, ; protection of speech is not limited to clear-cut propositions subject to assent or contradiction, but covers a broader sphere of expressive preference. What counts here, then, is not whether respondents fail to disagree with the generalized message of the generic ads that California fruit is good, but that they do indeed deny that the general message is as valuable and worthy of their support as more particular claims about the merits of their own brands. One need not "disagree" with an abstractionist when buying a canvas from a representational painter; one merely wishes to support a different act of expression. D The Secretary of Agriculture has a further argument for minimizing or eliminating scrutiny of this subsidization mandate, which deserves some mention even though the Court does not adopt it. The Secretary calls for lesser scrutiny of forced payments for truthful advertising and promotion than for restrictions on commercial speech, on the ground that the effect of compelled funding is to increase the sum of information to the consuming public. This argument rests, however, *40 on the assumption that regulation of commercial speech is justified solely or largely on preservation of public access to truthful information, an assumption we have already seen to be inaccurate. Truth is indeed a justifiable objective of commercial speech protection, but so is non misleading persuasion directed to the advertiser's own choice of what to promote. Although not cited by the Secretary, the closest pass at authority for his limited rationale of commercial speech protection is our only examination of a commercial speech mandate before today. The state law there required disclosures about the method of calculating a contingent fee when legal representation on that basis was advertised. In speaking of the objecting lawyer's comparatively modest interest in challenging the state requirement, we referred to protection of commercial speech as "justified principally by the value to consumers of the information such speech provides" ; see also Virginia Bd. of 4 U. S., at 765, 770; But this proposition will not bear the weight of the Government's position. We said "principally," not exclusively, and proceeded to uphold the state requirement not because a regulation adding to public information is immune from scrutiny, but because the mandate at issue bore a reasonable relation to the "State's interest in preventing deception of consumers," 471 U.S., who might otherwise be ignorant of the real terms on which the advertiser intended to do business. Zauderer thereby reaffirmed a long standing preference for disclosure requirements over outright bans, as more narrowly tailored cures for the potential of commercial messages to mislead by saying too little. See -652, n. 14; see also at ; n. ; Central Gas & Elec. ; Virginia Bd. of But however long the pedigree of such mandates may be, and however broad the government's authority to impose them, Zauderer carries no authority for a mandate unrelated to the interest in avoiding misleading or incomplete commercial messages. II For the reasons discussed above, none of the Court's grounds suffices for discounting respondents' interests in expression here and treating these compelled advertising schemes as regulations of purely economic conduct instead of commercial speech. I would therefore adhere to the principle laid down in our compelled-speech cases: laws requiring an individual to engage in or pay for expressive activities are reviewed under the same standard that applies to laws prohibiting one from engaging in or paying for such activities. Under the test for commercial speech, the law may be held constitutional only if (1) the interest being pursued by the government is substantial, and (2) the regulation directly advances that interest and (3) is narrowly tailored to serve it. Central[6] The burden is on the *42 government. ; Board of Trustees of State Univ. of N. In this case, the Secretary has failed to establish that the challenged advertising programs satisfy any of these three prongs of the Central test. A The express purposes of the Agricultural Marketing Agreement Act of 137 (AMAA or Act), 7 U.S. C. 601 et seq., including the advertising programs established under it, are to stabilize markets for covered agricultural products and maintain the prices received by farmers. 602(1), (4); see also Federal Agriculture Improvement and Reform Act of 16 (FAIR Act) 501(b)(1), (3), Stat. 888, 1030 (finding by Congress that the purpose of agricultural commodity promotion laws is to maintain and expand the market for covered commodities).[7] It is doubtless true that at a general level these are substantial government interests, and unless there were some reason to doubt that undue market instability or income fluctuation has in fact affected a given segment of the economy, governmental *43 efforts to address such problems would require little to satisfy the first Central criterion that a substantial government interest be the object of the regulation. Thus, if the Government were to attack these problems across an interstate market for a given agricultural commodity or group of them, the substantiality of the national interest would not be open to apparent question, and the sole issues under Central would seem to be whether the means chosen were sufficiently direct and well tailored. But when the government's program targets expression in only a narrow band of a broad spectrum of similar market activities in which its interests appear to be at stake, a question naturally does arise. For the arbitrariness or under inclusiveness of the scheme chosen by the government may well suggest that the asserted interests either are not pressing or are not the real objects animating the restriction on speech. See 514 U. S., at ("[E]xemptions and inconsistencies" in alcohol labeling ban "bring into question the purpose of the ban," such that it does not survive the Central test); City of ; Cincinnati v. Discovery Network, ; Florida Under such circumstances, the government's obligation to establish the empirical reality of the problems it purports to be addressing, see Turner v. FCC, ; requires a sensible reason for drawing the line between those instances in which the government burdens First Amendment freedom in the name of the asserted interest and those in which it does not. *44 Here, the AMAA's authorization of compelled advertising programs is so random and so randomly implemented, in light of the Act's stated purposes, as to unsettle any inference that the Government's asserted interest is either substantial or even real. First, the Act authorizes paid advertising programs in marketing orders for listed fruits, nuts, vegetables, and eggs, but not for any other agricultural commodity. See 7 U.S. C. 608c(6)(I).[8] The list includes onions but not garlic, tomatoes but not cucumbers, Tokay grapes but not other grapes, and so on. The selection is puzzling. The only thing the limited list unambiguously shows is that a need for promotional control does not go hand-in-hand with a need for market and economic stability, since the authorization for marketing orders bears no such narrow restriction to specific types of produce. But no general criterion for selection is stated in the text, and neither Congress nor the Secretary has so much as suggested that such a criterion exists. Instead, the legislative history shows that from time to time Congress has simply amended the Act to add particular commodities to the list at the request of interested producers or handlers, without ever explaining why compelled *45 advertising programs were necessary for the specific produce chosen and not others.[] The legislative history for the bill authorizing paid advertising programs for plums, nectarines, and several other commodities is a good case on point. The record indicates merely that "[o]ver the past several years, numerous commodity groups have come to the Congress and asked for authority to provide for [market development and advertising] activities under the terms of their agreement and it has always been granted. This bill combines several such individual requests made by various producer groups operating under marketing agreements or orders." H. R. Rep. No. 8-846, 8th Cong., 1st Sess., 2 (165). A letter from the Acting Secretary of Agriculture appended to the cited House Report similarly accounts for the choice of covered products solely by reference to grower and handler interest. Or, again, the legislative history of the amendment adding "California-grown peaches" to the list refers only to the view of the Department of Agriculture *46 that "any fruit or vegetable commodity group which actively supports the development of a promotion program by this means should be given an opportunity to do so." S. Rep. No. 2-25, p. 2 (171). Nor do the proposed rulemakings for authorizing advertising programs in marketing orders carry findings that might explain why such programs might be needed for the specified commodities but not others; the announcements rely instead on a "consensus of the industry that promotional activities have been beneficial in increasing demand," (171) ; see also -14377 (peaches).[10] Of course, when government goes no further than regulating the underlying economic activity, this sort of piecemeal legislation in answer to expressions of interest by affected parties is plainly permissible, short of something so arbitrary as to fail the rational basis test. See, e. g., Williamson v. Lee Optical of Okla., 487- But when speech is at stake, the government fails to carry its burden of showing a substantial interest when it does nothing more than refer to a "consensus" within a limited interest group that wants the regulation. Instead, the erratic pattern of regulation itself places the reality of any public or governmental interest in question, and a correlation with nothing more than the priorities of particular interest groups gives no reassuring answer.[11] *47 A second element of the arbitrary in this statutory and regulatory scheme inheres in the geographical limitations on the marketing orders that include the advertising programs challenged in this case, which apply only to peaches, plums, and nectarines grown in California, unaccompanied by counterparts for advertising the same commodities grown elsewhere. Some geographical restriction, it must be said, follows from the general provision of the AMAA limiting marketing orders to the smallest production or marketing area practicable and consistent with the policy of the Act. See 7 U.S. C. 608c(11)(B). But this provision merely explains why a substantial governmental interest in advertising a type of produce would have to be manifested in as many orders under the AMAA as there are defined production or marketing areas; it does nothing to explain the oddity that a Government interest worth vindicating should occur within such geographically select boundaries and nowhere else, or to negate the suggestion of the evidence already mentioned, that the Government's asserted interest is nothing more than the preference of a local interest group. The oddity is most pronounced in the instance of peaches, since the statute itself authorizes forced advertising only in marketing orders for "California-grown peaches," not in orders for peaches grown anywhere else in the country. 608c(6)(I). Although California is the biggest peachgrowing State, more than 30 others also grow peaches commercially and together typically account for about half of the *48 national crop, and roughly two-thirds of the peaches sold fresh. See App. 38; U. S. Dept. of Agriculture, Agricultural Statistics, 15-6, p. V-23 (Table 24). Yet the nonCalifornia peaches are utterly ignored in the Government's promotional orders. The challenged advertising campaign for "California Summer Fruits," running in markets throughout the United States and in Canada, see App. 341— 343, 477-47, does not proclaim simply that peaches or the other fruits are good things. Rather, as the Secretary tells us, the advertising program "promotes California fruit as unique." Brief for Petitioner 31. It may or may not be, but promoting a crop from one State at the expense of essentially the same thing grown in the others reveals nothing about a substantial national interest justifying the National Government in restricting speech. Without more, the most reasonable inference is not of a substantial Government interest, but effective politics on the part of producers who see the chance to spread their advertising costs. Nothing more appears.[12] The Secretary makes no attempt to explain how the Act's geographical scope restrictions relate to the asserted goals of the advertising programs. The general restriction of marketing orders to the smallest practicable area has been part of the Act since it became law, long before Congress permitted compelled advertising, the authorization for which was simply grafted onto the existing Act as a convenient vehicle for the funding schemes. See n. ; see also S. Rep. No. 2-25, * Nor does any explanation appear for restricting peach advertising programs to California produce. Without some explanation, one would expect something quite different, that a compelled advertising program of the National Government intended to increase consumer demand for an agricultural commodity would apply to produce grown throughout the land. Indeed, in recently enacting the FAIR Act, which authorizes compulsory advertising programs for all agricultural commodities on a national basis (but also leaves the separate provisions of the AMAA intact, see 524, ), Congress specifically found that "[t]he cooperative development, financing, and implementation of a coordinated national program of research, promotion, and information regarding agricultural commodities are necessary to maintain and expand existing markets and to develop new markets for these commodities." 512(a)(7), ; see also 514(a)(2), The AMAA, of course, actually prohibits orders of national scope. In sum, these advertising schemes come with a statutory text and regulatory history so remote from the Government's asserted interests as to undermine the reality, let alone the substantiality, of the claims put forward by the Secretary in attempting to satisfy Central `s first requirement. B Even if the Secretary could establish a sufficiently substantial interest, he would need also to show how the compelled advertising programs directly advance that interest, that is, how the schemes actually contribute to stabilizing agricultural markets and maintaining farm income by stimulating consumer demand. To show this required causation, the Secretary relies on cases concerning governmental bans on particular advertising content, where we have accepted the unremarkable presumption that advertising actually works to increase consumer demand, so that limiting advertising *500 tends to soften it. See United States v. Edge 50 U.S. 418, ; Posadas de Puerto Rico Associates v. Tourism of P. R., ; Central 447 U. S., This presumption is not, however, automatically convertible into support for the Secretary here. In the cases mentioned, the question has been whether some advertising (in the absence of the government's ban) would be more effective in stimulating demand than no advertising (due to the ban). Here, in contrast, the causal question of direct advancement does not involve comparing the effectiveness of something with nothing, for even without the coercive promotional schemes there would be some voluntary advertising. Thus, the question here requires a comparison of the effectiveness of advertising under the Government's program with the effectiveness of whatever advertising would likely exist without it.[] For this purpose, the Secretary correctly notes that the effectiveness of the Government's regulation must be viewed overall, considering the market behavior of growers and handlers generally, not just in its isolated application to one or a few individuals such as respondents. Edge The Secretary therefore argues that though respondents have voiced the desire to do more individual advertising if the system of mandatory assessments were ended, other handlers who benefit from the Government's *501 program might well become "free riders" if promotion were to become wholly voluntary, to the point of cutting the sum total of advertising done. That might happen. It is also reasonably conceivable, though, that pure self-interest would keep the level of voluntary advertising high enough that the mandatory program could only be seen as affecting the details of the ads or shifting their costs, in either event without effect on market stability or income to producers as a group.[14] We, of course, do not know, but these possibilities alone should be fatal to the Government here, which has the burden to establish the factual justification for ordering a subsidy for commercial speech. Mere speculation about one or another possibility does not carry the burden, see Turner 512 U. S., at ; -771, and the Government has to show that its mandatory scheme appreciably increases the total amount of advertising for a commodity or somehow does a better job of sparking the right level of consumer demand than a wholly voluntary system would. There is no evidence of this in the record here. C Finally, a regulation of commercial speech must be narrowly tailored to achieving the government's interests; there must be a "`fit' between the legislature's ends and the means chosen to accomplish those ends,—a fit that represents not necessarily the single best disposition but one whose *502 scope is in proportion to the interest served." Board of Trustees of State Univ. of N. 42 U. S., at This sense of fitness is not precise, to be sure, but it rules out a regulation if "far less restrictive and more precise means" are available. Respondents argue that the mandatory advertising schemes for California peaches, plums, and nectarines fail this narrow tailoring requirement, because they deny handlers any credit toward their assessments for some or all of their individual advertising expenditures. The point is well taken. On its face, at least, a credit system would be a far less restrictive and more precise way to achieve the Government's stated interests, eliminating as it would much of the burden on respondents' speech without diminishing the total amount of advertising for a particular commodity. Indeed, the remarkable thing is that the AMAA itself provides for exactly such credits for individual advertising expenditures under marketing orders for almonds, filberts, raisins, walnuts, olives, and Florida Indian River grapefruit, but not for other commodities. 7 U.S. C. 608c(6)(I). The Secretary contends, however, that the purpose of individual "branded" advertising is to increase the market share of a single handler, and so is at odds with the purpose of the Government's mandatory program, which is to expand the overall size of the market through the use of "generic" advertising for a commodity generally. See also FAIR Act 501(b)(6), (7), -1031 (congressional finding of same). Perhaps so, but that does not tell us what to make of the credit for, say, private raisin advertising. It would be hard to imagine more effectively "branded" advertising than promotions for Sun-Maid raisins, but the statute would allow Sun-Maid a credit. Why would that be consistent with the Government's generic objective, but a credit for respondents' nectarine ads not be? The Government gives us no answer. Without some further explanation, the statute on raisin advertising *503 seems to reflect a conclusion that could reasonably be drawn after examining some of the "branded" advertising in the record before us. A consumer galvanized by respondents' depiction of "Mr. Plum," App. 542, might turn down a plum by any other name, but I doubt it.[15] I acknowledge that in implementing a credit program for individual advertising in an otherwise valid compulsory program, the Government would need substantial leeway in determining whether such expenditures do in fact further the goal of expanding markets generally. But where, as here, no particular evaluation has been made, and the statute dealing with other fruit apparently assumes that some private advertising does serve the common good, and everything else is left to assertion, there could be no finding that a program completely denying credits for all individual advertising *504 expenditures is narrowly tailored to an interest in the stability or expansion of overall markets for a commodity. * * * Although the government's obligation is not a heavy one in Central and the cases that follow it, we have understood it to call for some showing beyond plausibility, and there has been none here. I would accordingly affirm the judgment of the Ninth Circuit.

Justice Thomas

second_dissenting

Glickman v. Wileman Brothers & Elliott, Inc.

1997-06-25

https://www.courtlistener.com/opinion/118139/glickman-v-wileman-brothers-elliott-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118139/

1996-086

I I join Justice Souter's dissent, with the exception of Part II. My join is thus limited because I continue to disagree with the use of the Central Hudson balancing test and the discounted weight given to commercial speech generally. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518— 528 (1996) (Thomas, J., concurring in part and concurring in judgment) (criticizing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980)). Because the regulation at issue here fails even the more lenient Central Hudson test, however, it, a fortiori, would fail the higher standard that should be applied to all speech, whether commercial or not. II I write separately to note my disagreement with the majority's conclusion that coerced funding of advertising by others does not involve "speech" at all and does not even raise a First Amendment "issue." See ante, at 469-474. It is one thing to differ about whether a particular regulation involves an "abridgment" of the freedom of speech, but it is entirely another matter—and a complete repudiation of our precedent—for the majority to deny that "speech" is even at issue in this case. *505 In numerous cases, this Court has recognized that paying money for the purposes of advertising involves speech.[1] The Court also has recognized that compelling speech raises a First Amendment issue just as much as restricting speech.[2] Given these two elemental principles of our First Amendment jurisprudence, it is incongruous to suggest that forcing fruit growers to contribute to a collective advertising campaign does not even involve speech, while at the same time effectively conceding that forbidding a fruit grower to make those same contributions voluntarily would violate the First Amendment. Compare ante, at 470 (promotional regulations should be scrutinized under the same standard as other anti competitive aspects of the marketing orders), with ante, at 469, and n. 12 (distinguishing this case as not involving a "restraint" on any producer's freedom to communicate with any audience). Yet, that is precisely what the majority opinion does.[3] *506 What we are now left with, if we are to take the majority opinion at face value, is one of two disturbing consequences: Either (1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are,[4] or (2) compelling payment for third-party communication does not implicate speech, and thus the Government would be free to force payment for a whole variety of expressive conduct that it could not restrict. In either case, surely we have lost our way.

I I join Justice Souter's dissent, with the exception of Part II. My join is thus limited because I continue to disagree with the use of the Central Hudson balancing test and the discounted weight given to commercial speech generally. See 44 Liquormart, ). Because the regulation at issue here fails even the more lenient Central Hudson test, however, it, a fortiori, would fail the higher standard that should be applied to all speech, whether commercial or not. II I write separately to note my disagreement with the majority's conclusion that coerced funding of advertising by others does not involve "speech" at all and does not even raise a First Amendment "issue." See ante, at 469-474. It is one thing to differ about whether a particular regulation involves an "abridgment" of the freedom of speech, but it is entirely another matter—and a complete repudiation of our precedent—for the majority to deny that "speech" is even at issue in this case. *505 In numerous cases, this Court has recognized that paying money for the purposes of advertising involves speech.[1] The Court also has recognized that compelling speech raises a First Amendment issue just as much as restricting speech.[2] Given these two elemental principles of our First Amendment jurisprudence, it is incongruous to suggest that forcing fruit growers to contribute to a collective advertising campaign does not even involve speech, while at the same time effectively conceding that forbidding a fruit grower to make those same contributions voluntarily would violate the First Amendment. Compare ante, at 470 (promotional regulations should be scrutinized under the same standard as other anti competitive aspects of the marketing orders), with ante, at 469, and n. 12 (distinguishing this case as not involving a "restraint" on any producer's freedom to communicate with any audience). Yet, that is precisely what the majority opinion does.[3] *506 What we are now left with, if we are to take the majority opinion at face value, is one of two disturbing consequences: Either (1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are,[4] or (2) compelling payment for third-party communication does not implicate speech, and thus the Government would be free to force payment for a whole variety of expressive conduct that it could not restrict. In either case, surely we have lost our way.

Justice Breyer

majority

Ohio Forestry Assn., Inc. v. Sierra Club

1998-05-26

https://www.courtlistener.com/opinion/118210/ohio-forestry-assn-inc-v-sierra-club/

https://www.courtlistener.com/api/rest/v3/clusters/118210/

1997-067

The Sierra Club challenges the lawfulness of a federal land and resource management plan adopted by the United States Forest Service for Ohio's Wayne National Forest on the ground that the plan permits too much logging and too much clearcutting. We conclude that the controversy is not yet ripe for judicial review. I The National Forest Management Act of 1976 (NFMA) requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." 90 Stat. 2949, as renumbered and amended, 16 U.S. C. § 1604(a). The System itself is vast. It includes 155 national forests, 20 national grasslands, 8 land utilization projects, and other lands that together occupy nearly 300,000 square miles of land located in 44 States, Puerto Rico, and the Virgin Islands. § 1609(a); 36 CFR § 200.1(c)(2) (1997); Office of the *729 Federal Register, United States Government Manual 135 (1997/1998). The National Forest Service, which manages the System, develops land and resource management plans pursuant to NFMA, and uses these forest plans to "guide all natural resource management activities," 36 CFR § 219.1(b) (1997), including use of the land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S. C. § 1604(e)(1). In developing the plans, the Service must take both environmental and commercial goals into account. See, e. g., § 1604(g); 36 CFR § 219.1(a) (1997). This case focuses upon a plan that the Forest Service has developed for the Wayne National Forest located in southern Ohio. When the Service wrote the plan, the forest consisted of 178,000 federally owned acres (278 sq. mi.) in three forest units that are interspersed among privately owned lands, some of which the Forest Service plans to acquire over time. See Land and Resource Management Plan, Wayne National Forest, United States Department of Agriculture, Forest Service, Eastern Region (1987) 1-3, 3-1, A-13 to A-17 (hereinafter Plan). The Plan permits logging to take place on 126,000 (197 sq. mi.) of the federally owned acres. Id., at 4-7, 4-180. At the same time, it sets a ceiling on the total amount of wood that can be cut—a ceiling that amounts to about 75 million board feet over 10 years, and which, the Plan projects, would lead to logging on about 8,000 acres (12.5 sq. mi.) during that decade. Id., at 4-180. According to the Plan, logging on about 5,000 (7.8 sq. mi.) of those 8,000 acres would involve clearcutting, or other forms of what the Forest Service calls "even-aged" tree harvesting. Id., at 3-5, 4-180. Although the Plan sets logging goals, selects the areas of the forest that are suited to timber production, 16 U.S. C. § 1604(k), and determines which "probable methods of timber harvest" are appropriate, § 1604(f)(2), it does not itself authorize the cutting of any trees. Before the Forest Service can permit the logging, it must: (a) propose a specific area in *730 which logging will take place and the harvesting methods to be used, Plan 4-20 to 4-25; 53 Fed. Reg. 26835-26836 (1988); (b) ensure that the project is consistent with the Plan, 16 U.S. C. § 1604(i); 36 CFR § 219.10(e) (1997); (c) provide those affected by proposed logging notice and an opportunity to be heard, 106 Stat. 1419 (note following 16 U.S. C. § 1612); 36 CFR pt. 215, § 217.1(b) (1997); Plan 5-2; (d) conduct an environmental analysis pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S. C. § 4332 et seq.; Plan 4-14, to evaluate the effects of the specific project and to contemplate alternatives, 40 CFR §§ 1502.14, 1508.9(b) (1997); Plan 1-2; and (e) subsequently make a final decision to permit logging, which affected persons may challenge in an administrative appeals process and in court, see 106 Stat. 1419-1420 (note folowing 16 U.S. C. § 1612); 5 U.S. C. § 701 et seq. See also 53 Fed. Reg. 26834-26835 (1988); 58 Fed. Reg. 19370-19371 (1993). Furthermore, the statute requires the Forest Service to "revise" the Plan "as appropriate." 16 U.S. C. § 1604(a). Despite the considerable legal distance between the adoption of the Plan and the moment when a tree is cut, the Plan's promulgation nonetheless makes logging more likely in that it is a logging precondition; in its absence logging could not take place. See ibid. (requiring promulgation of forest plans); § 1604(i) (requiring all later forest uses to conform to forest plans). When the Forest Service first proposed its Plan, the Sierra Club and the Citizens Council on Conservation and Environmental Control each objected. In an effort to bring about the Plan's modification, they (collectively Sierra Club), pursued various administrative remedies. See Administrative Decision of the Chief of the Forest Service (Nov. 14, 1990), Pet. for Cert. 66a; Appeal Decision, Wayne National Forest Land and Resource Management Plan (Jan. 14, 1992), id., at 78a. The Sierra Club then brought this lawsuit in federal court, initially against the Chief of the Forest Service, the Secretary of Agriculture, the Regional Forester, and the *731 Forest Supervisor. The Ohio Forestry Association, some of whose members harvest timber from the Wayne National Forest or process wood products obtained from the forest, later intervened as a defendant. The Sierra Club's second amended complaint sets forth its legal claims. That complaint initially states facts that describe the Plan in detail and allege that erroneous analysis leads the Plan wrongly to favor logging and clearcutting. Second Amended Complaint ¶¶ 13-47 (hereinafter Complaint), App. 16-23. The Complaint then sets forth three claims for relief. The first claim for relief says that the "defendants in approving the plan for the Wayne [National Forest] and in directing or permitting below-cost timber sales accomplished by means of clearcutting" violated various laws including the NFMA, the NEPA, and the Administrative Procedure Act. Complaint ¶ 49, id., at 24. The second claim says that the "defendants' actions in directing or permitting below-cost timber sales in the Wayne [National Forest] under the plan violate [their] duties as public trustees." Complaint ¶ 52, ibid. The third claim says that, in selecting the amount of the forest suitable for timber production, the defendants followed regulations that failed properly to identify "economically unsuitable lands." Complaint ¶¶ 54-58, id., at 25-26. It adds that, because the Forest Service's regulations thereby permitted the Service to place "economically unsuitable lands" in the category of land where logging could take place, the regulations violated their authorizing statute, NFMA, 16 U.S. C. § 1600 et seq. , and were "arbitrary, capricious, an abuse of discretion, and not in accordance with law," pursuant to the Administrative Procedure Act, 5 U.S. C. § 701 et seq. Complaint ¶ 60, App. 26. The Complaint finally requests as relief: (a) a declaration that the Plan "is unlawful as are the below-cost timber sales and timbering, including clearcutting, authorized by the *732 plan," (b) an "injunction prohibiting the defendants from permitting or directing further timber harvest and/or below-cost timber sales" pending Plan revision, (c) costs and attorney's fees, and (d) "such other further relief as may be appropriate." Complaint ¶¶ (a)—(d), id., at 26-27. The District Court reviewed the Plan, decided that the Forest Service had acted lawfully in making the various determinations that the Sierra Club had challenged, and granted summary judgment for the Forest Service. Sierra Club v. Robertson, 845 F. Supp. 485, 503 (SD Ohio 1994). The Sierra Club appealed. The Court of Appeals for the Sixth Circuit held that the dispute was justiciable, finding both that the Sierra Club had standing to bring suit, and that since the suit was "ripe for review," there was no need to wait "until a site-specific action occurs." Sierra Club v. Thomas, 105 F.3d 248, 250 (1997). The Court of Appeals disagreed with the District Court about the merits. It held that the Plan improperly favored clearcutting and therefore violated NFMA. Id., at 251-252. We granted certiorari to determine whether the dispute about the Plan presents a controversy that is justiciable now, and if so, whether the Plan conforms to the statutory and regulatory requirements for a forest plan. II Petitioner alleges that this suit is nonjusticiable both because the Sierra Club lacks standing to bring this case and because the issues before us—over the Plan's specifications for logging and clearcutting—are not yet ripe for adjudication. We find that the dispute is not justiciable, because it is not ripe for court review. Cf. Steel Co. v. Citizens For Better Environment, ante, at 100-101, n. 3. As this Court has previously pointed out, the ripeness requirement is designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract *733 disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967). In deciding whether an agency's decision is, or is not, ripe for judicial review, the Court has examined both the "fitness of the issues for judicial decision" and the "hardship to the parties of withholding court consideration." Id., at 149. To do so in this case, we must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented. These considerations, taken together, foreclose review in the present case. First, to "withhol[d] court consideration" at present will not cause the parties significant "hardship" as this Court has come to use that term. Ibid. For one thing, the provisions of the Plan that the Sierra Club challenges do not create adverse effects of a strictly legal kind, that is, effects of a sort that traditionally would have qualified as harm. To paraphrase this Court's language in United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 309-310 (1927) (opinion of Brandeis, J.), they do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut. Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances—an important consideration in light of this Court's *734 modern ripeness cases. See, e. g., Abbott Laboratories, supra, at 152-154. As we have pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court. Supra, at 729-730. The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain. Any such later challenge might also include a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i. e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging. Hence we do not find a strong reason why the Sierra Club must bring its challenge now in order to get relief. Cf. Abbott Laboratories, supra, at 152. Nor has the Sierra Club pointed to any other way in which the Plan could now force it to modify its behavior in order to avoid future adverse consequences, as, for example, agency regulations can sometimes force immediate compliance through fear of future sanctions. Cf. Abbott Laboratories, supra, at 152-153 (finding challenge ripe where plaintiffs must comply with Federal Drug Administration labeling rule at once and incur substantial economic costs or risk later serious criminal and civil penalties for unlawful drug distribution); Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 417-419 (1942) (finding challenge ripe where plaintiffs must comply with burdensome Federal Communications Commission rule at once or risk later loss of license and consequent serious harm). The Sierra Club does say that it will be easier, and certainly cheaper, to mount one legal challenge against the Plan now, than to pursue many challenges to each site-specific logging decision to which the Plan might eventually lead. It does not explain, however, why one initial site-specific victory (if based on the Plan's unlawfulness) could not, through *735 preclusion principles, effectively carry the day. See Lujan v. National Wildlife Federation, 497 U.S. 871, 894 (1990). And, in any event, the Court has not considered this kind of litigation cost saving sufficient by itself to justify review in a case that would otherwise be unripe. The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of—even repetitive— post implementation litigation. See, e. g., ibid. ("The caseby-case approach . . . is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's . . . forests . . . . But this is the traditional, and remains the normal, mode of operation of the courts"); FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980); Renegotiation Bd. v. Banner craft Clothing Co., 415 U.S. 1, 24 (1974); Petroleum Exploration, Inc. v. Public Serv. Comm'n, 304 U.S. 209, 222 (1938). Second, from the agency's perspective, immediate judicial review directed at the lawfulness of logging and clear cutting could hinder agency efforts to refine its policies: (a) through revision of the Plan, e. g., in response to an appropriate proposed site-specific action that is inconsistent with the Plan, see 53 Fed. Reg. 23807, 26836 (1988), or (b) through application of the Plan in practice, e. g., in the form of site-specific proposals, which are subject to review by a court applying purely legal criteria. Cf. Abbott Laboratories, supra, at 149; Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 201 (1983). Cf. Standard Oil Co., supra, at 242 (premature review "denies the agency an opportunity to correct its own mistakes and to apply its expertise"). And, here, the possibility that further consideration will actually occur before the Plan is implemented is not theoretical, but real. See, e. g., 60 Fed. Reg. 18886, 18901 (1995) (forest plans often not fully implemented), id., at 18905-18907 (discussing process for amending forest plans); 58 Fed. Reg. 19369, 19370-19371 *736 (1993) (citing administrative appeals indicating that plans are merely programmatic in nature and that plan cannot foresee all effects on forest); Appeal Nos. 92-09-11-0008, 92-09-11— 0009 (Lodging II) (successful Sierra Club administrative appeals against Wayne timber harvesting site-specific projects). Hearing the Sierra Club's challenge now could thus interfere with the system that Congress specified for the agency to reach forest logging decisions. Third, from the courts' perspective, review of the Sierra Club's claims regarding logging and clearcutting now would require time-consuming judicial consideration of the details of an elaborate, technically based plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that a particular logging proposal could provide. Thus, for example, the court below in evaluating the Sierra Club's claims had to focus upon whether the Plan as a whole was "improperly skewed," rather than focus upon whether the decision to allow clearcutting on a particular site was improper, say, because the site was better suited to another use or logging there would cumulatively result in too many trees being cut. See 105 F.3d, at 250-251. And, of course, depending upon the agency's future actions to revise the Plan or modify the expected methods of implementation, review now may turn out to have been unnecessary. See Standard Oil Co., supra, at 242. This type of review threatens the kind of "abstract disagreements over administrative policies," Abbott Laboratories, 387 U. S., at 148, that the ripeness doctrine seeks to avoid. In this case, for example, the Court of Appeals panel disagreed about whether or not the Forest Service suffered from a kind of general "bias" in favor of timber production and clearcutting. Review where the consequences had been "reduced to more manageable proportions," and where the *737 "factual components [were] fleshed out, by some concrete action" might have led the panel majority either to demonstrate that bias and its consequences through record citation (which it did not do) or to abandon the claim. National Wildlife Federation, supra, at 891. All this is to say that further factual development would "significantly advance our ability to deal with the legal issues presented" and would "aid us in their resolution." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 82 (1978). Finally, Congress has not provided for preimplementation judicial review of forest plans. Those plans are tools for agency planning and management. The Plan is consequently unlike agency rules that Congress has specifically instructed the courts to review "pre-enforcement." Cf. National Wildlife Federation, supra, at 891; 15 U.S. C. § 2618 (Toxic Substances Control Act) (providing preenforcement review of agency action); 30 U.S. C. § 1276(a) (Surface Mining Control and Reclamation Act of 1977) (same); 42 U.S. C. § 6976 (Resource Conservation and Recovery Act of 1976) (same); § 7607(b) (Clean Air Act) (same); 43 U.S. C. § 1349(c)(3) (Outer Continental Shelf Lands Act); Harrison v. PPG Industries, Inc., 446 U.S. 578, 592-593 (1980). Nor does the Plan, which through standards guides future use of forests, resemble an environmental impact statement prepared pursuant to NEPA. That is because in this respect NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Compare 16 U.S. C. § 1604(e) (requiring that forest plans provide for multiple coordinated use of forests, including timber and wilderness) with 42 U.S. C. § 4332 (requiring that agencies prepare environmental impact statements where major agency action would significantly affect the environment). Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper. *738 III The Sierra Club makes one further important contrary argument. It says that the Plan will hurt it in many ways that we have not yet mentioned. Specifically, the Sierra Club says that the Plan will permit "many intrusive activities, such as opening trails to motorcycles or using heavy machinery," which "will go forward without any additional consideration of their impact on wilderness recreation." Brief for Respondents 34. At the same time, in areas designated for logging, "affirmative measures to promote undisturbed back country recreation, such as closing roads and building additional hiking trails," will not take place. Ibid. These are harms, says the Sierra Club, that will not take place at a distant future time. Rather, they will take place now. This argument suffers from the legally fatal problem that it makes its first appearance here in this Court in the briefs on the merits. The Complaint, fairly read, does not include such claims. Instead, it focuses on the amount and method of timber harvesting. The Sierra Club has not referred us to any other court documents in which it protests the Plan's approval of motorcycles or machinery, the Plan's failure to close roads or to provide for the building of trails, or other disruptions that the Plan might cause those who use the forest for hiking. As far as we can tell, prior to the argument on the merits here, the harm to which the Sierra Club objected consisted of too much, and the wrong kind of, logging. The matter is significant because the Government concedes that if the Sierra Club had previously raised these other kinds of harm, the ripeness analysis in this case with respect to those provisions of the Plan that produce the harm would be significantly different. The Government's brief in the Court of Appeals said: "If, for example, a plan incorporated a final decision to close a specific area to off-road vehicles, the plan itself *739 could result in imminent concrete injury to a party with an interest in the use of off-road vehicles in that area." Brief for Federal Appellees in No. 94-3407 (CA6), p. 20. And, at oral argument, the Solicitor General agreed that if the Sierra Club's claim was that the "plan was allowing motorcycles into a bird-watching area or something [like that], that would be immediately justiciable." Tr. of Oral Arg. 5. Thus, we believe these other claims that the Sierra Club now raises are not fairly presented here, and we cannot consider them. IV For these reasons, we find the respondents' suit not ripe for review. We vacate the judgment of the Court of Appeals, and we remand this case with instructions to dismiss. It is so ordered.

The Sierra Club challenges the lawfulness of a federal land and resource management plan adopted by the United States Forest Service for Ohio's Wayne National Forest on the ground that the plan permits too much logging and too much clearcutting. We conclude that the controversy is not yet ripe for judicial review. I The National Forest Management Act of 1976 (NFMA) requires the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System." as renumbered and amended, 16 U.S. C. 1604(a). The System itself is vast. It includes 155 national forests, 20 national grasslands, 8 land utilization projects, and other lands that together occupy nearly 300,000 square miles of land located in 44 States, Puerto Rico, and the Virgin Islands. 1609(a); 36 CFR 200.1(c)(2) ; Office of the *729 Federal Register, United States Government Manual 135 (/1998). The National Forest Service, which manages the System, develops land and resource management plans pursuant to NFMA, and uses these forest plans to "guide all natural resource management activities," 36 CFR 219.1(b) including use of the land for "outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness." 16 U.S. C. 1604(e)(1). In developing the plans, the Service must take both environmental and commercial goals into account. See, e. g., 1604(g); 36 CFR 219.1(a) This case focuses upon a plan that the Forest Service has developed for the Wayne National Forest located in southern Ohio. When the Service wrote the plan, the forest consisted of 178,000 federally owned acres (278 sq. mi.) in three forest units that are interspersed among privately owned lands, some of which the Forest Service plans to acquire over time. See Land and Resource Management Plan, Wayne National Forest, United States Department of Agriculture, Forest Service, Eastern Region (1987) 1-3, 3-1, A-13 to A-17 (hereinafter Plan). The Plan permits logging to take place on 126,000 (197 sq. mi.) of the federally owned acres. At the same time, it sets a ceiling on the total amount of wood that can be cut—a ceiling that amounts to about 75 million board feet over 10 years, and which, the Plan projects, would lead to logging on about 8,000 acres (12.5 sq. mi.) during that decade. According to the Plan, logging on about 5,000 (7.8 sq. mi.) of those 8,000 acres would involve clearcutting, or other forms of what the Forest Service calls "even-aged" tree harvesting. Although the Plan sets logging goals, selects the areas of the forest that are suited to timber production, 16 U.S. C. 1604(k), and determines which "probable methods of timber harvest" are appropriate, 1604(f)(2), it does not itself authorize the cutting of any trees. Before the Forest Service can permit the logging, it must: (a) propose a specific area in *730 which logging will take place and the harvesting methods to be used, Plan 4-20 to 4-25; -26836 (1988); (b) ensure that the project is consistent with the Plan, 16 U.S. C. 1604(i); 36 CFR 219.10(e) ; (c) provide those affected by proposed logging notice and an opportunity to be heard, (note following 16 U.S. C. 1612); 36 CFR pt. 215, 217.1(b) ; Plan 5-2; (d) conduct an environmental analysis pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S. C. 4332 et seq.; Plan 4-14, to evaluate the effects of the specific project and to contemplate alternatives, 40 CFR 1502.14, 1508.9(b) ; Plan 1-2; and (e) subsequently make a final decision to permit logging, which affected persons may challenge in an administrative appeals process and in court, see -1420 (note folowing 16 U.S. C. 1612); 5 U.S. C. 701 et seq. See also -26835 (1988); -19371 (1993). Furthermore, the statute requires the Forest Service to "revise" the Plan "as appropriate." 16 U.S. C. 1604(a). Despite the considerable legal distance between the adoption of the Plan and the moment when a tree is cut, the Plan's promulgation nonetheless makes logging more likely in that it is a logging precondition; in its absence logging could not take place. See ; 1604(i) (requiring all later forest uses to conform to forest plans). When the Forest Service first proposed its Plan, the Sierra Club and the Citizens Council on Conservation and Environmental Control each objected. In an effort to bring about the Plan's modification, they (collectively Sierra Club), pursued various administrative remedies. See Administrative Decision of the Chief of the Forest Service Pet. for Cert. 66a; Appeal Decision, Wayne National Forest Land and Resource Management Plan (Jan. 14, 1992), at 78a. The Sierra Club then brought this lawsuit in federal court, initially against the Chief of the Forest Service, the Secretary of Agriculture, the Regional Forester, and the *731 Forest Supervisor. The Ohio Forestry Association, some of whose members harvest timber from the Wayne National Forest or process wood products obtained from the forest, later intervened as a defendant. The Sierra Club's second amended complaint sets forth its legal claims. That complaint initially states facts that describe the Plan in detail and allege that erroneous analysis leads the Plan wrongly to favor logging and clearcutting. Second Amended Complaint ¶¶ 13-47 (hereinafter Complaint), App. 16-23. The Complaint then sets forth three claims for relief. The first claim for relief says that the "defendants in approving the plan for the Wayne [National Forest] and in directing or permitting below-cost timber sales accomplished by means of clearcutting" violated various laws including the NFMA, the NEPA, and the Administrative Procedure Act. Complaint ¶ 49, The second claim says that the "defendants' actions in directing or permitting below-cost timber sales in the Wayne [National Forest] under the plan violate [their] duties as public trustees." Complaint ¶ 52, The third claim says that, in selecting the amount of the forest suitable for timber production, the defendants followed regulations that failed properly to identify "economically unsuitable lands." Complaint ¶¶ 54-58, It adds that, because the Forest Service's regulations thereby permitted the Service to place "economically unsuitable lands" in the category of land where logging could take place, the regulations violated their authorizing statute, NFMA, 16 U.S. C. 1600 et seq. and were "arbitrary, capricious, an abuse of discretion, and not in accordance with law," pursuant to the Administrative Procedure Act, 5 U.S. C. 701 et seq. Complaint ¶ 60, App. 26. The Complaint finally requests as relief: (a) a declaration that the Plan "is unlawful as are the below-cost timber sales and timbering, including clearcutting, authorized by the *732 plan," (b) an "injunction prohibiting the defendants from permitting or directing further timber harvest and/or below-cost timber sales" pending Plan revision, (c) costs and attorney's fees, and (d) "such other further relief as may be appropriate." Complaint ¶¶ (a)—(d), The District Court reviewed the Plan, decided that the Forest Service had acted lawfully in making the various determinations that the Sierra Club had challenged, and granted summary judgment for the Forest Service. Sierra The Sierra Club appealed. The Court of Appeals for the Sixth Circuit held that the dispute was justiciable, finding both that the Sierra Club had standing to bring suit, and that since the suit was "ripe for review," there was no need to wait "until a site-specific action occurs." Sierra The Court of Appeals disagreed with the District Court about the merits. It held that the Plan improperly favored clearcutting and therefore violated NFMA. We granted certiorari to determine whether the dispute about the Plan presents a controversy that is justiciable now, and if so, whether the Plan conforms to the statutory and regulatory requirements for a forest plan. II Petitioner alleges that this suit is nonjusticiable both because the Sierra Club lacks standing to bring this case and because the issues before us—over the Plan's specifications for logging and clearcutting—are not yet ripe for adjudication. We find that the dispute is not justiciable, because it is not ripe for court review. Cf. Steel v. Citizens For Better Environment, ante, at 100-101, n. 3. As this Court has previously pointed out, the ripeness requirement is designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract *733 disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott In deciding whether an agency's decision is, or is not, ripe for judicial review, the Court has examined both the "fitness of the issues for judicial decision" and the "hardship to the parties of withholding court consideration." To do so in this case, we must consider: (1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented. These considerations, taken together, foreclose review in the present case. First, to "withhol[d] court consideration" at present will not cause the parties significant "hardship" as this Court has come to use that term. For one thing, the provisions of the Plan that the Sierra Club challenges do not create adverse effects of a strictly legal kind, that is, effects of a sort that traditionally would have qualified as harm. To paraphrase this Court's language in United they do not command anyone to do anything or to refrain from doing anything; they do not grant, withhold, or modify any formal legal license, power, or authority; they do not subject anyone to any civil or criminal liability; they create no legal rights or obligations. Thus, for example, the Plan does not give anyone a legal right to cut trees, nor does it abolish anyone's legal authority to object to trees being cut. Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances—an important consideration in light of this Court's *734 modern ripeness cases. See, e. g., Abbott As we have pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain. Any such later challenge might also include a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i. e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging. Hence we do not find a strong reason why the Sierra Club must bring its challenge now in order to get relief. Cf. Abbott Nor has the Sierra Club pointed to any other way in which the Plan could now force it to modify its behavior in order to avoid future adverse consequences, as, for example, agency regulations can sometimes force immediate compliance through fear of future sanctions. Cf. Abbott -153 ; Columbia Broadcasting System, The Sierra Club does say that it will be easier, and certainly cheaper, to mount one legal challenge against the Plan now, than to pursue many challenges to each site-specific logging decision to which the Plan might eventually lead. It does not explain, however, why one initial site-specific victory (if based on the Plan's unlawfulness) could not, through *735 preclusion principles, effectively carry the day. See And, in any event, the Court has not considered this kind of litigation cost saving sufficient by itself to justify review in a case that would otherwise be unripe. The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of—even repetitive— post implementation litigation. See, e. g., ; ; Renegotiation ; Petroleum Exploration, Second, from the agency's perspective, immediate judicial review directed at the lawfulness of logging and clear cutting could hinder agency efforts to refine its policies: (a) through revision of the Plan, e. g., in response to an appropriate proposed site-specific action that is inconsistent with the Plan, see 26836 (1988), or (b) through application of the Plan in practice, e. g., in the form of site-specific proposals, which are subject to review by a court applying purely legal criteria. Cf. Abbott ; Pacific Gas & Elec. Cf. Standard Oil 2 And, here, the possibility that further consideration will actually occur before the Plan is implemented is not theoretical, but real. See, e. g., 18901 (1995) (forest plans often not fully implemented), ; 19370-19371 *736 (1993) (citing administrative appeals indicating that plans are merely programmatic in nature and that plan cannot foresee all effects on forest); Appeal Nos. 92-09-11-0008, 92-09-11— 0009 (Lodging II) (successful Sierra Club administrative appeals against Wayne timber harvesting site-specific projects). Hearing the Sierra Club's challenge now could thus interfere with the system that Congress specified for the agency to reach forest logging decisions. Third, from the courts' perspective, review of the Sierra Club's claims regarding logging and clearcutting now would require time-consuming judicial consideration of the details of an elaborate, technically based plan, which predicts consequences that may affect many different parcels of land in a variety of ways, and which effects themselves may change over time. That review would have to take place without benefit of the focus that a particular logging proposal could provide. Thus, for example, the court below in evaluating the Sierra Club's claims had to focus upon whether the Plan as a whole was "improperly skewed," rather than focus upon whether the decision to allow clearcutting on a particular site was improper, say, because the site was better suited to another use or logging there would cumulatively result in too many trees being cut. See 105 F.3d, at -251. And, of course, depending upon the agency's future actions to revise the Plan or modify the expected methods of implementation, review now may turn out to have been unnecessary. See Standard Oil 2. This type of review threatens the kind of "abstract disagreements over administrative policies," Abbott that the ripeness doctrine seeks to avoid. In this case, for example, the Court of Appeals panel disagreed about whether or not the Forest Service suffered from a kind of general "bias" in favor of timber production and clearcutting. Review where the consequences had been "reduced to more manageable proportions," and where the *737 "factual components [were] fleshed out, by some concrete action" might have led the panel majority either to demonstrate that bias and its consequences through record citation (which it did not do) or to abandon the claim. National Wildlife All this is to say that further factual development would "significantly advance our ability to deal with the legal issues presented" and would "aid us in their resolution." Duke Power v. Carolina Environmental Study Group, Inc., Finally, Congress has not provided for preimplementation judicial review of forest plans. Those plans are tools for agency planning and management. The Plan is consequently unlike agency rules that Congress has specifically instructed the courts to review "pre-enforcement." Cf. National Wildlife ; 15 U.S. C. 2618 (Toxic Substances Control Act) (providing preenforcement review of agency action); 30 U.S. C. 1276(a) (Surface Mining Control and Reclamation Act of 1977) (same); 42 U.S. C. 6976 (Resource Conservation and Recovery Act of 1976) (same); 7607(b) (Clean Air Act) (same); 43 U.S. C. 1349(c)(3) (Outer Continental Shelf Lands Act); Nor does the Plan, which through standards guides future use of forests, resemble an environmental impact statement prepared pursuant to NEPA. That is because in this respect NEPA, unlike the NFMA, simply guarantees a particular procedure, not a particular result. Compare 16 U.S. C. 1604(e) (requiring that forest plans provide for multiple coordinated use of forests, including timber and wilderness) with 42 U.S. C. 4332 (requiring that agencies prepare environmental impact statements where major agency action would significantly affect the environment). Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper. *738 III The Sierra Club makes one further important contrary argument. It says that the Plan will hurt it in many ways that we have not yet mentioned. Specifically, the Sierra Club says that the Plan will permit "many intrusive activities, such as opening trails to motorcycles or using heavy machinery," which "will go forward without any additional consideration of their impact on wilderness recreation." Brief for Respondents 34. At the same time, in areas designated for logging, "affirmative measures to promote undisturbed back country recreation, such as closing roads and building additional hiking trails," will not take place. These are harms, says the Sierra Club, that will not take place at a distant future time. Rather, they will take place now. This argument suffers from the legally fatal problem that it makes its first appearance here in this Court in the briefs on the merits. The Complaint, fairly read, does not include such claims. Instead, it focuses on the amount and method of timber harvesting. The Sierra Club has not referred us to any other court documents in which it protests the Plan's approval of motorcycles or machinery, the Plan's failure to close roads or to provide for the building of trails, or other disruptions that the Plan might cause those who use the forest for hiking. As far as we can tell, prior to the argument on the merits here, the harm to which the Sierra Club objected consisted of too much, and the wrong kind of, logging. The matter is significant because the Government concedes that if the Sierra Club had previously raised these other kinds of harm, the ripeness analysis in this case with respect to those provisions of the Plan that produce the harm would be significantly different. The Government's brief in the Court of Appeals said: "If, for example, a plan incorporated a final decision to close a specific area to off-road vehicles, the plan itself *739 could result in imminent concrete injury to a party with an interest in the use of off-road vehicles in that area." Brief for Federal Appellees in No. 94-3407 (CA6), p. 20. And, at oral argument, the Solicitor General agreed that if the Sierra Club's claim was that the "plan was allowing motorcycles into a bird-watching area or something [like that], that would be immediately justiciable." Tr. of Oral Arg. 5. Thus, we believe these other claims that the Sierra Club now raises are not fairly presented here, and we cannot consider them. IV For these reasons, we find the respondents' suit not ripe for review. We vacate the judgment of the Court of Appeals, and we remand this case with instructions to dismiss. It is so ordered.

Justice Ginsburg

majority

Cutter v. Wilkinson

2005-05-31

https://www.courtlistener.com/opinion/142900/cutter-v-wilkinson/

https://www.courtlistener.com/api/rest/v3/clusters/142900/

2004-052

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA or Act), 114 Stat. 804, 42 U.S. C. § 2000cc-1(a)(1)-(2), provides in part: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." Plaintiffs below, petitioners here, are current and former inmates of institutions operated by the Ohio Department of Rehabilitation and Correction and assert that they are adherents of "nonmainstream" religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian.[1] They complain that Ohio prison officials (respondents here), in violation of RLUIPA, have failed to accommodate their religious exercise *713 "in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream religions, forbidding them to adhere to the dress and appearance mandates of their religions, withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream religions are permitted, and failing to provide a chaplain trained in their faith." Brief for United States 5. For purposes of this litigation at its current stage, respondents have stipulated that petitioners are members of bona fide religions and that they are sincere in their beliefs. Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 833 (SD Ohio 2002). In response to petitioners' complaints, respondent prison officials have mounted a facial challenge to the institutionalized-persons provision of RLUIPA; respondents contend, inter alia, that the Act improperly advances religion in violation of the First Amendment's Establishment Clause. The District Court denied respondents' motion to dismiss petitioners' complaints, but the Court of Appeals reversed that determination. The appeals court held, as the prison officials urged, that the portion of RLUIPA applicable to institutionalized persons, 42 U.S. C. § 2000cc-1, violates the Establishment Clause. We reverse the Court of Appeals' judgment. "This Court has long recognized that the government may . . . accommodate religious practices . . . without violating the Establishment Clause." Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-145 (1987). Just last Term, in Locke v. Davey, 540 U.S. 712 (2004), the Court reaffirmed that "there is room for play in the joints between" the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause. *714 Id., at 718 (quoting Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669 (1970)). "At some point, accommodation may devolve into `an unlawful fostering of religion.'" Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334-335 (1987) (quoting Hobbie, 480 U. S., at 145). But § 3 of RLUIPA, we hold, does not, on its face, exceed the limits of permissible government accommodation of religious practices. I A RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court's precedents. Ten years before RLUIPA's enactment, the Court held, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878-882 (1990), that the First Amendment's Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. In particular, we ruled that the Free Exercise Clause did not bar Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired peyote use. Id., at 874, 890. The Court recognized, however, that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use. Id., at 890. Responding to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. RFRA "prohibits `[g]overnment' from `substantially burden[ing]' a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden `(1) *715 is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.'" City of Boerne v. Flores, 521 U.S. 507, 515-516 (1997) (brackets in original) (quoting § 2000bb-1). "[U]niversal" in its coverage, RFRA "applie[d] to all Federal and State law," id., at 516 (quoting former § 2000bb-3(a)), but notably lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds. In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress' remedial powers under the Fourteenth Amendment. Id., at 532-536.[2] Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U.S. C. § 2000cc;[3] § 3 relates to religious exercise by institutionalized persons, § 2000cc-1. Section 3, at issue here, provides that "[n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government shows that the burden furthers "a compelling governmental interest" and does so by "the least restrictive means." § 2000cc-1(a)(1)-(2). The Act defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A). Section 3 applies when "the substantial burden [on religious exercise] is imposed in a program or *716 activity that receives Federal financial assistance,"[4] or "the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes." § 2000cc-1(b)(1)-(2). "A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." § 2000cc-2(a). Before enacting § 3, Congress documented, in hearings spanning three years, that "frivolous or arbitrary" barriers impeded institutionalized persons' religious exercise. See 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (hereinafter Joint Statement) ("Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.").[5] To secure *717 redress for inmates who encountered undue barriers to their religious observances, Congress carried over from RFRA the "compelling governmental interest"/"least restrictive means" standard. See id., at S7774. Lawmakers anticipated, however, that courts entertaining complaints under § 3 would accord "due deference to the experience and expertise of prison and jail administrators." Id., at S7775 (quoting S. Rep. No. 103-111, p. 10 (1993)). B Petitioners initially filed suit against respondents asserting claims under the First and Fourteenth Amendments. After RLUIPA's enactment, petitioners amended their complaints to include claims under § 3. Respondents moved to dismiss the statutory claims, arguing, inter alia, that § 3 violates the Establishment Clause. 221 F. Supp. 2d, at 846. Pursuant to 28 U.S. C. § 2403(a), the United States intervened in the District Court to defend RLUIPA's constitutionality. 349 F.3d 257, 261 (CA6 2003). Adopting the report and recommendation of the Magistrate Judge, the District Court rejected the argument that § 3 conflicts with the Establishment Clause. 221 F. Supp. 2d, at 846-848. As to the Act's impact on a prison's staff and general inmate population, the court stated that RLUIPA "permits safety and security—which are undisputedly compelling state interests—to outweigh an inmate's claim to a religious accommodation." Id., at 848. On the thin record before it, the court declined to find, as respondents had urged, that enforcement of RLUIPA, inevitably, would compromise prison security. Ibid. On interlocutory appeal pursuant to 28 U.S. C. § 1292(b), the Court of Appeals for the Sixth Circuit reversed. Citing Lemon v. Kurtzman, 403 U.S. 602 (1971),[6] the Court of Appeals *718 held that § 3 of RLUIPA "impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights." 349 F.3d, at 264. Affording "religious prisoners rights superior to those of nonreligious prisoners," the court suggested, might "encourag[e] prisoners to become religious in order to enjoy greater rights." Id., at 266. We granted certiorari to resolve the conflict among Courts of Appeals on the question whether RLUIPA's institutionalized-persons provision, § 3 of the Act, is consistent with the Establishment Clause of the First Amendment. 543 U.S. 924 (2004).[7] Compare 349 F.3d 257 with Madison v. Riter, 355 F.3d 310, 313 (CA4 2003) (§ 3 of RLUIPA does not violate the Establishment Clause); Charles v. Verhagen, 348 F.3d 601, 610-611 (CA7 2003) (same); Mayweathers v. Newland, 314 F.3d 1062, 1068-1069 (CA9 2002) (same). We *719 now reverse the judgment of the Court of Appeals for the Sixth Circuit. II A The Religion Clauses of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation's people. While the two Clauses express complementary values, they often exert conflicting pressures. See Locke, 540 U. S., at 718 ("These two Clauses . . . are frequently in tension."); Walz, 397 U. S., at 668-669 ("The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other."). Our decisions recognize that "there is room for play in the joints" between the Clauses, id., at 669, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. See, e. g., Smith, 494 U. S., at 890 ("[A] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation. . . ."); Amos, 483 U. S., at 329-330 (Federal Government may exempt secular nonprofit activities of religious organizations from Title VII's prohibition on religious discrimination in employment); Sherbert v. Verner, 374 U.S. 398, 422 (1963) (Harlan, J., dissenting) ("The constitutional obligation of `neutrality' is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation." (citation omitted)). In accord with the majority of Courts of Appeals that have ruled on the question, see supra, at 718 and this *720 page, we hold that § 3 of RLUIPA fits within the corridor between the Religion Clauses: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause. Foremost, we find RLUIPA's institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 705 (1994) (government need not "be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice"); Amos, 483 U. S., at 349 (O'CONNOR, J., concurring in judgment) (removal of government-imposed burdens on religious exercise is more likely to be perceived "as an accommodation of the exercise of religion rather than as a Government endorsement of religion"). Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); and they must be satisfied that the Act's prescriptions are and will be administered neutrally among different faiths, see Kiryas Joel, 512 U.S. 687.[8] "[T]he `exercise of religion' often involves not only belief and profession but the performance of . . . physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine. . . ." Smith, 494 U. S., at 877. Section 3 covers state-run institutions—mental hospitals, prisons, and the like—in which the government exerts a degree of control unparalleled in civilian society *721 and severely disabling to private religious exercise. 42 U.S. C. § 2000cc-1(a); § 1997; see Joint Statement S7775 ("Institutional residents' right to practice their faith is at the mercy of those running the institution.").[9] RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion.[10] *722 We note in this regard the Federal Government's accommodation of religious practice by members of the military. See, e. g., 10 U.S. C. § 3073 (referring to Army chaplains); Katcoff v. Marsh, 755 F.2d 223, 225-229 (CA2 1985) (describing the Army chaplaincy program). In Goldman v. Weinberger, 475 U.S. 503 (1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, "there is simply not the same [individual] autonomy as there is in the larger civilian community." Id., at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that "a member of the armed forces may wear an item of religious apparel while wearing the uniform," unless "the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative." 10 U.S. C. §§ 774(a)-(b). We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. In Caldor, the Court struck down a Connecticut law that "arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath." 472 U.S., at 709. We held the law invalid under the Establishment Clause because it "unyielding[ly] weigh[ted]" the interests of Sabbatarians "over all other interests." Id., at 710. We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a *723 "compelling governmental interest" standard, see supra, at 715, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003).[11] Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e. g., 139 Cong. Rec. 26190 (1993) (remarks of Sen. Hatch). They anticipated that courts would apply the Act's standard with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Joint Statement S7775 (quoting S. Rep. No. 103-111, at 10).[12] Finally, RLUIPA does not differentiate among bona fide faiths. In Kiryas Joel, we invalidated a state law that carved out a separate school district to serve exclusively a *724 community of highly religious Jews, the Satmar Hasidim. We held that the law violated the Establishment Clause, 512 U.S., at 690, in part because it "single[d] out a particular religious sect for special treatment," id., at 706 (footnote omitted). RLUIPA presents no such defect. It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment. B The Sixth Circuit misread our precedents to require invalidation of RLUIPA as "impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights." 349 F.3d, at 264. Our decision in Amos counsels otherwise. There, we upheld against an Establishment Clause challenge a provision exempting "religious organizations from Title VII's prohibition against discrimination in employment on the basis of religion." 483 U.S., at 329. The District Court in Amos, reasoning in part that the exemption improperly "single[d] out religious entities for a benefit," id., at 338, had "declared the statute unconstitutional as applied to secular activity," id., at 333. Religious accommodations, we held, need not "come packaged with benefits to secular entities." Id., at 338; see Madison, 355 F. 3d, at 318 ("There is no requirement that legislative protections for fundamental rights march in lockstep."). Were the Court of Appeals' view the correct reading of our decisions, all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail, see 10 U.S. C. § 774, as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate "traditionally recognized" religions, 221 F. Supp. 2d, at 832: The State provides inmates with chaplains "but not with publicists or political consultants," and allows "prisoners to assemble *725 for worship, but not for political rallies," Reply Brief for United States 5. In upholding RLUIPA's institutionalized-persons provision, we emphasize that respondents "have raised a facial challenge to [the Act's] constitutionality, and have not contended that under the facts of any of [petitioners'] specific cases . . . [that] applying RLUIPA would produce unconstitutional results." 221 F. Supp. 2d, at 831. The District Court, noting the underdeveloped state of the record, concluded: A finding "that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates" cannot be made at this juncture. Id., at 848 (emphasis added).[13] We agree. "For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners." Brief for United States 24 (citation omitted). The Congress that enacted RLUIPA was aware of the Bureau's experience. See Joint Statement S7776 (letter from Dept. of Justice to Sen. Hatch) ("[W]e do not believe [RLUIPA] would have an unreasonable *726 impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system."). We see no reason to anticipate that abusive prisoner litigation will overburden the operations of state and local institutions. The procedures mandated by the Prison Litigation Reform Act of 1995, we note, are designed to inhibit frivolous filings.[14] Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA or Act), 42 U.S. C. 2000cc-1(a)(1)-(2), provides in part: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." Plaintiffs below, petitioners here, are current and former inmates of institutions operated by the Ohio Department of Rehabilitation and Correction and assert that they are adherents of "nonmainstream" : the Satanist, Wicca, and Asatru and the Church of Jesus Christ Christian.[1] They complain that Ohio prison officials (respondents here), in violation of RLUIPA, have failed to accommodate their religious exercise *713 "in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream forbidding them to adhere to the dress and appearance mandates of their withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream are permitted, and failing to provide a chaplain trained in their faith." Brief for United States 5. For purposes of this litigation at its current stage, respondents have stipulated that petitioners are members of bona fide and that they are sincere in their beliefs. In response to petitioners' complaints, respondent prison officials have mounted a facial challenge to the institutionalized-persons provision of RLUIPA; respondents contend, inter alia, that the Act improperly advances religion in violation of the First Amendment's Establishment The District Court denied respondents' motion to dismiss petitioners' complaints, but the Court of Appeals reversed that determination. The appeals court held, as the prison officials urged, that the portion of RLUIPA applicable to institutionalized persons, 42 U.S. C. 2000cc-1, violates the Establishment We reverse the Court of Appeals' judgment. "This Court has long recognized that the government may accommodate religious practices without violating the Establishment " Just last Term, in the Court reaffirmed that "there is room for play in the joints between" the Free Exercise and Establishment s, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment *714 ). "At some point, accommodation may devolve into `an unlawful fostering of religion.'" Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day But 3 of RLUIPA, we hold, does not, on its face, exceed the limits of permissible government accommodation of religious practices. I A RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court's precedents. Ten years before RLUIPA's enactment, the Court held, in Employment Div., Dept. of Human Resources of that the First Amendment's Free Exercise does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. In particular, we ruled that the Free Exercise did not bar Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired peyote use. The Court recognized, however, that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use. Responding to Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. RFRA "prohibits `[g]overnment' from `substantially burden[ing]' a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden `(1) *715 is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.'" City of (quoting 2000bb-1). "[U]niversal" in its coverage, RFRA "applie[d] to all Federal and State law," (quoting former 2000bb-3(a)), but notably lacked a Commerce underpinning or a Spending limitation to recipients of federal funds. In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress' remedial powers under the Fourteenth Amendment.[2] Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce s, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U.S. C. 2000cc;[3] 3 relates to religious exercise by institutionalized persons, 2000cc-1. Section 3, at issue here, provides that "[n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government shows that the burden furthers "a compelling governmental interest" and does so by "the least restrictive means." 2000cc-1(a)(1)-(2). The Act defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 2000cc-5(7)(A). Section 3 applies when "the substantial burden [on religious exercise] is imposed in a program or *716 activity that receives Federal financial assistance,"[4] or "the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes." 2000cc-1(b)(1)-(2). "A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 2000cc-2(a). Before enacting 3, Congress documented, in hearings spanning three years, that "frivolous or arbitrary" barriers impeded institutionalized persons' religious exercise. See 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (hereinafter Joint Statement) ("Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.").[5] To secure *717 redress for inmates who encountered undue barriers to their religious observances, Congress carried over from RFRA the "compelling governmental interest"/"least restrictive means" standard. See at S7774. Lawmakers anticipated, however, that courts entertaining complaints under 3 would accord "due deference to the experience and expertise of prison and jail administrators." at S7775 (quoting S. Rep. No. 103-111, p. 10 (1993)). B Petitioners initially filed suit against respondents asserting claims under the First and Fourteenth Amendments. After RLUIPA's enactment, petitioners amended their complaints to include claims under 3. Respondents moved to dismiss the statutory claims, arguing, inter alia, that 3 violates the Establishment Pursuant to 28 U.S. C. 2403(a), the United States intervened in the District Court to defend RLUIPA's constitutionality. Adopting the report and recommendation of the Magistrate Judge, the District Court rejected the argument that 3 conflicts with the Establishment -848. As to the Act's impact on a prison's staff and general inmate population, the court stated that RLUIPA "permits safety and security—which are undisputedly compelling state interests—to outweigh an inmate's claim to a religious accommodation." On the thin record before it, the court declined to find, as respondents had urged, that enforcement of RLUIPA, inevitably, would compromise prison security. On interlocutory appeal pursuant to 28 U.S. C. 1292(b), the Court of Appeals for the Sixth Circuit reversed. Citing[6] the Court of Appeals *718 held that 3 of RLUIPA "impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights." Affording "religious prisoners rights superior to those of nonreligious prisoners," the court suggested, might "encourag[e] prisoners to become religious in order to enjoy greater rights." We granted certiorari to resolve the conflict among Courts of Appeals on the question whether RLUIPA's institutionalized-persons provision, 3 of the Act, is consistent with the Establishment of the First Amendment.[7] Compare ( 3 of RLUIPA does not violate the Establishment ); ; We *719 now reverse the judgment of the Court of Appeals for the Sixth Circuit. II A The Religion s of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first of the two s, commonly called the Establishment commands a separation of church and state. The second, the Free Exercise requires government respect for, and noninterference with, the religious beliefs and practices of our Nation's people. While the two s express complementary values, they often exert conflicting pressures. See 540 U. S., ; - Our decisions recognize that "there is room for play in the joints" between the s, at some space for legislative action neither compelled by the Free Exercise nor prohibited by the Establishment See, e. g., 494 U. S., ; -330 ; ("The constitutional obligation of `neutrality' is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation." (citation omitted)). In accord with the majority of Courts of Appeals that have ruled on the question, see and this *720 page, we hold that 3 of RLUIPA fits within the corridor between the Religion s: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Foremost, we find RLUIPA's institutionalized-persons provision compatible with the Establishment because it alleviates exceptional government-created burdens on private religious exercise. See Board of Ed. of Kiryas Joel Village School ; (removal of government-imposed burdens on religious exercise is more likely to be perceived "as an accommodation of the exercise of religion rather than as a Government endorsement of religion"). Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of ; and they must be satisfied that the Act's prescriptions are and will be administered neutrally among different faiths, see Kiryas Joel,[8] "[T]he `exercise of religion' often involves not only belief and profession but the performance of physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine." Section 3 covers state-run institutions—mental hospitals, prisons, and the like—in which the government exerts a degree of control unparalleled in civilian society *721 and severely disabling to private religious exercise. 42 U.S. C. 2000cc-1(a); 1997; see Joint Statement S7775 ("Institutional residents' right to practice their faith is at the mercy of those running the institution.").[9] RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion.[10] *722 We note in this regard the Federal Government's accommodation of religious practice by members of the military. See, e. g., 10 U.S. C. 3073 (referring to Army chaplains); In we held that the Free Exercise did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, "there is simply not the same [individual] autonomy as there is in the larger civilian community." Congress responded to Goldman by prescribing that "a member of the armed forces may wear an item of religious apparel while wearing the uniform," unless "the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative." 10 U.S. C. 774(a)-(b). We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. In Caldor, the Court struck down a Connecticut law that "arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath." We held the law invalid under the Establishment because it "unyielding[ly] weigh[ted]" the interests of Sabbatarians "over all other interests." We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a *723 "compelling governmental interest" standard, see "[c]ontext matters" in the application of that standard. See[11] Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e. g., 139 Cong. Rec. 90 (1993) (remarks of Sen. Hatch). They anticipated that courts would apply the Act's standard with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Joint Statement S7775 (quoting S. Rep. No. 103-111, at 10).[12] Finally, RLUIPA does not differentiate among bona fide faiths. In Kiryas Joel, we invalidated a state law that carved out a separate school district to serve exclusively a *724 community of highly religious Jews, the Satmar Hasidim. We held that the law violated the Establishment in part because it "single[d] out a particular religious sect for special treatment," RLUIPA presents no such defect. It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment. B The Sixth Circuit misread our precedents to require invalidation of RLUIPA as "impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights." Our decision in counsels otherwise. There, we upheld against an Establishment challenge a provision exempting "religious organizations from Title VII's prohibition against discrimination in employment on the basis of religion." The District Court in reasoning in part that the exemption improperly "single[d] out religious entities for a benefit," had "declared the statute unconstitutional as applied to secular activity," Religious accommodations, we held, need not "come packaged with benefits to secular entities." ; see Were the Court of Appeals' view the correct reading of our decisions, all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail, see 10 U.S. C. 774, as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate "traditionally recognized" : The State provides inmates with chaplains "but not with publicists or political consultants," and allows "prisoners to assemble *725 for worship, but not for political rallies," Reply Brief for United States 5. In upholding RLUIPA's institutionalized-persons provision, we emphasize that respondents "have raised a facial challenge to [the Act's] constitutionality, and have not contended that under the facts of any of [petitioners'] specific cases [that] applying RLUIPA would produce unconstitutional results." The District Court, noting the underdeveloped state of the record, concluded: A finding "that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates" cannot be made at this juncture.[13] We agree. "For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners." Brief for United States 24 (citation omitted). The Congress that enacted RLUIPA was aware of the Bureau's experience. See Joint Statement S7776 (letter from Dept. of Justice to Sen. Hatch) ("[W]e do not believe [RLUIPA] would have an unreasonable *726 impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system."). We see no reason to anticipate that abusive prisoner litigation will overburden the operations of state and local institutions. The procedures mandated by the Prison Litigation Reform Act of 1995, we note, are designed to inhibit frivolous filings.[14] Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

concurring

Cutter v. Wilkinson

2005-05-31

https://www.courtlistener.com/opinion/142900/cutter-v-wilkinson/

https://www.courtlistener.com/api/rest/v3/clusters/142900/

2004-052

I join the opinion of the Court. I agree with the Court that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is constitutional under our modern Establishment Clause case law.[1] I write to explain why a *727 proper historical understanding of the Clause as a federalism provision leads to the same conclusion.[2] I The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Amdt. 1. As I have explained, an important function of the Clause was to "ma[ke] clear that Congress could not interfere with state establishments." Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 50 (2004) (opinion concurring in judgment). The Clause, then, "is best understood as a *728 federalism provision" that "protects state establishments from federal interference." Ibid.; see also Zelman v. Simmons-Harris, 536 U.S. 639, 677-680 (2002) (THOMAS, J., concurring); Lee v. Weisman, 505 U.S. 577, 641 (1992) (SCALIA, J., dissenting). Ohio contends that this federalism understanding of the Clause prevents federal oversight of state choices within the "`play in the joints'" between the Free Exercise and Establishment Clauses. Locke v. Davey, 540 U.S. 712, 718-719 (2004). In other words, Ohio asserts that the Clause protects the States from federal interference with otherwise constitutionally permissible choices regarding religious policy. In Ohio's view, RLUIPA intrudes on such state policy choices and hence violates the Clause. Ohio's vision of the range of protected state authority overreads the Clause. Ohio and its amici contend that, even though "States can no longer establish preferred churches" because the Clause has been incorporated against the States through the Fourteenth Amendment,[3] "Congress is as unable as ever to contravene constitutionally permissible State choices regarding religious policy." Brief for Respondents 26 (emphasis added); Brief for Commonwealth of Virginia et al. as Amici Curiae 6-13. That is not what the Clause says. The Clause prohibits Congress from enacting legislation "respecting an establishment of religion" (emphasis added); it does not prohibit Congress from enacting legislation "respecting religion" or "taking cognizance of religion." *729 P. Hamburger, Separation of Church and State 106-107 (2002). At the founding, establishment involved "`coercion of religious orthodoxy and of financial support by force of law and threat of penalty,'" Newdow, supra, at 52 (THOMAS, J., concurring in judgment) (quoting Lee, supra, at 640-641 (SCALIA, J., dissenting), in turn citing L. Levy, The Establishment Clause 4 (1986)), including "`governmental preferences for particular religious faiths,'" 542 U.S., at 53 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 856 (1995) (THOMAS, J., concurring)). In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers. See 542 U.S., at 52 (THOMAS, J., concurring in judgment); Lee, supra, at 640-641 (SCALIA, J., dissenting); McConnell 2131; L. Levy, The Establishment Clause: Religion and the First Amendment 10 (2d ed. 1994). To proscribe Congress from making laws "respecting an establishment of religion," therefore, was to forbid legislation respecting coercive state establishments, not to preclude Congress from legislating on religion generally. History, at least that presented by Ohio, does not show that the Clause hermetically seals the Federal Government out of the field of religion. Ohio points to, among other things, the words of James Madison in defense of the Constitution at the Virginia Ratifying Convention: "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." General Defense of the Constitution (June 12, 1788), reprinted in 11 Papers of James Madison 130 (R. Rutland, C. Hobson, W. Rachal, & J. Sisson eds. 1977). Ohio also relies on James Iredell's statement discussing the Religious Test Clause at the North Carolina Ratifying Convention: "[Congress] certainly [has] no authority to interfere in the establishment of any religion whatsoever . . . . Is there any power given to Congress in matters of religion? *730 Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm . . . . If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution, and which the people would not obey." Debate in North Carolina Ratifying Convention (July 30, 1788), in 5 Founders' Constitution 90 (P. Kurland & R. Lerner eds. 1987). These quotations do not establish the Framers' beliefs about the scope of the Establishment Clause. Instead, they demonstrate only that some of the Framers may have believed that the National Government had no authority to legislate concerning religion, because no enumerated power gave it that authority. Ohio's Spending Clause and Commerce Clause challenges, therefore, may well have merit. See n. 2, supra. In any event, Ohio has not shown that the Establishment Clause codified Madison's or Iredell's view that the Federal Government could not legislate regarding religion. An unenacted version of the Clause, proposed in the House of Representatives, demonstrates the opposite. It provided that "Congress shall make no laws touching religion, or infringing the rights of conscience." 1 Annals of Cong. 731 (1789); see also Wallace v. Jaffree, 472 U.S. 38, 96-97 (1985) (REHNQUIST, J., dissenting). The words ultimately adopted, "Congress shall make no law respecting an establishment of religion," "identified a position from which [Madison] had once sought to distinguish his own," Hamburger, Separation of Church and State, at 106. Whatever he thought of those words, "he clearly did not mind language less severe than that which he had [previously] used." Ibid. The version of the Clause finally adopted is narrower than Ohio claims. Nor does the other historical evidence on which Ohio relies—Joseph Story's Commentaries on the Constitution—prove its theory. Leaving aside the problems with relying *731 on this source as an indicator of the original understanding, see U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 856 (1995) (THOMAS, J., dissenting), it is unpersuasive in its own right. Justice Story did say that "the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions." Commentaries on the Constitution of the United States 702-703 (1833) (reprinted 1987). In context, however, his statement concerned only Congress' inability to legislate with respect to religious establishment. See id., at 701 ("The real object of the amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government"); id., at 702 ("[I]t was deemed advisable to exclude from the national government all power to act upon the subject. . . . It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment"). In short, the view that the Establishment Clause precludes Congress from legislating respecting religion lacks historical provenance, at least based on the history of which I am aware. Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws "respecting an establishment of religion"; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion. II On its face—the relevant inquiry, as this is a facial challenge—RLUIPA is not a law "respecting an establishment of *732 religion." RLUIPA provides, as relevant: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person," first, "further[s] a compelling governmental interest," and second, "is the least restrictive means of furthering that compelling governmental interest." 42 U.S. C. §§ 2000cc-1(a)(1)-(2). This provision does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion. In addition, RLUIPA's text applies to all laws passed by state and local governments, including "rule[s] of general applicability," ibid., whether or not they concern an establishment of religion. State and local governments obviously have many laws that have nothing to do with religion, let alone establishments thereof. Numerous applications of RLUIPA therefore do not contravene the Establishment Clause, and a facial challenge based on the Clause must fail. See United States v. Booker, 543 U.S. 220, 314 (2005) (THOMAS, J., concurring in part and dissenting in part); United States v. Salerno, 481 U.S. 739, 745 (1987). It also bears noting that Congress, pursuant to its Spending Clause authority, conditioned the States' receipt of federal funds on their compliance with RLUIPA. § 2000cc-1(b)(1) ("This section applies in any case in which . . . the substantial burden is imposed in a program or activity that receives Federal financial assistance"). As noted above, n. 2, supra, RLUIPA may well exceed the spending power. Nonetheless, while Congress' condition stands, the States *733 subject themselves to that condition by voluntarily accepting federal funds. The States' voluntary acceptance of Congress' condition undercuts Ohio's argument that Congress is encroaching on its turf.

I join the opinion of the Court. I agree with the Court that the Religious Land Use and Institutionalized Persons Act of 000 (RLUIPA) is constitutional under our modern Establishment Clause case law.[1] I write to explain why a *77 proper historical understanding of the Clause as a federalism provision leads to the same conclusion.[] I The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Amdt. 1. As I have explained, an important function of the Clause was to "ma[ke] clear that Congress could not interfere with state establishments." Elk Grove Unified School The Clause, then, "is best understood as a *78 federalism provision" that "protects state establishments from federal interference." ; see also ; 5 U.S. 577, Ohio contends that this federalism understanding of the Clause prevents federal oversight of state choices within the "`play in the joints'" between the Free Exercise and Establishment Clauses. In other words, Ohio asserts that the Clause protects the States from federal interference with otherwise constitutionally permissible choices regarding religious policy. In Ohio's view, RLUIPA intrudes on such state policy choices and hence violates the Clause. Ohio's vision of the range of protected state authority overreads the Clause. Ohio and its amici contend that, even though "States can no longer establish preferred churches" because the Clause has been incorporated against the States through the Fourteenth Amendment,[3] "Congress is as unable as ever to contravene constitutionally permissible State choices regarding religious policy." Brief for Respondents 6 (emphasis added); Brief for Commonwealth of Virginia et al. as Amici Curiae 6-13. That is not what the Clause says. The Clause prohibits Congress from enacting legislation "respecting an establishment of religion" (emphasis added); it does not prohibit Congress from enacting legislation "respecting religion" or "taking cognizance of religion." *79 P. Hamburger, Separation of Church and State 106-107 At the founding, establishment involved "`coercion of religious orthodoxy and of financial support by force of law and threat of penalty,'" Newdow, (quoting at 640- in turn citing L. Levy, The Establishment Clause 4 (1986)), including "`governmental preferences for particular religious faiths,'" ). In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers. See 54 U.S., ; at 640- ; McConnell 131; L. Levy, The Establishment Clause: Religion and the First Amendment 10 (d ed. 1994). To proscribe Congress from making laws "respecting an establishment of religion," therefore, was to forbid legislation respecting coercive state establishments, not to preclude Congress from legislating on religion generally. History, at least that presented by Ohio, does not show that the Clause hermetically seals the Federal Government out of the field of religion. Ohio points to, among other things, the words of James Madison in defense of the Constitution at the Virginia Ratifying Convention: "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." General Defense of the Constitution (June 1, 1788), reprinted in 11 Papers of James Madison 130 (R. Rutland, C. Hobson, W. Rachal, & J. Sisson eds. 1977). Ohio also relies on James Iredell's statement discussing the Religious Test Clause at the North Carolina Ratifying Convention: "[Congress] certainly [has] no authority to interfere in the establishment of any religion whatsoever Is there any power given to Congress in matters of religion? *730 Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution, and which the people would not obey." Debate in North Carolina Ratifying Convention (July 30, 1788), in 5 Founders' Constitution 90 These quotations do not establish the Framers' beliefs about the scope of the Establishment Clause. Instead, they demonstrate only that some of the Framers may have believed that the National Government had no authority to legislate concerning religion, because no enumerated power gave it that authority. Ohio's Spending Clause and Commerce Clause challenges, therefore, may well have merit. See n. In any event, Ohio has not shown that the Establishment Clause codified Madison's or Iredell's view that the Federal Government could not legislate regarding religion. An unenacted version of the Clause, proposed in the House of Representatives, demonstrates the opposite. It provided that "Congress shall make no laws touching religion, or infringing the rights of conscience." 1 Annals of Cong. 731 (1789); see also 47 U.S. 38, The words ultimately adopted, "Congress shall make no law respecting an establishment of religion," "identified a position from which [Madison] had once sought to distinguish his own," Hamburger, Separation of Church and State, at 106. Whatever he thought of those words, "he clearly did not mind language less severe than that which he had [previously] used." The version of the Clause finally adopted is narrower than Ohio claims. Nor does the other historical evidence on which Ohio relies—Joseph Story's Commentaries on the Constitution—prove its theory. Leaving aside the problems with relying *731 on this source as an indicator of the original understanding, see U. S. Term Limits, it is unpersuasive in its own right. Justice Story did say that "the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions." Commentaries on the Constitution of the United States 70-703 (1833) In context, however, his statement concerned only Congress' inability to legislate with respect to religious establishment. See ; at 70 ("[I]t was deemed advisable to exclude from the national government all power to act upon the subject. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment"). In short, the view that the Establishment Clause precludes Congress from legislating respecting religion lacks historical provenance, at least based on the history of which I am aware. Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws "respecting an establishment of religion"; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion. II On its face—the relevant inquiry, as this is a facial challenge—RLUIPA is not a law "respecting an establishment of *73 religion." RLUIPA provides, as relevant: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person," first, "further[s] a compelling governmental interest," and second, "is the least restrictive means of furthering that compelling governmental interest." 4 U.S. C. 000cc-1(a)(1)-(). This provision does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion. In addition, RLUIPA's text applies to all laws passed by state and local governments, including "rule[s] of general applicability," ib whether or not they concern an establishment of religion. State and local governments obviously have many laws that have nothing to do with religion, let alone establishments thereof. Numerous applications of RLUIPA therefore do not contravene the Establishment Clause, and a facial challenge based on the Clause must fail. See United 543 U.S. 0, (005) ; United It also bears noting that Congress, pursuant to its Spending Clause authority, conditioned the States' receipt of federal funds on their compliance with RLUIPA. 000cc-1(b)(1) ("This section applies in any case in which the substantial burden is imposed in a program or activity that receives Federal financial assistance"). As noted above, n. RLUIPA may well exceed the spending power. Nonetheless, while Congress' condition stands, the States *733 subject themselves to that condition by voluntarily accepting federal funds. The States' voluntary acceptance of Congress' condition undercuts Ohio's argument that Congress is encroaching on its turf.

Justice Thomas

majority

Cochise Consultancy, Inc. v. United States ex rel. Hunt

2019-05-13

https://www.courtlistener.com/opinion/4618957/cochise-consultancy-inc-v-united-states-ex-rel-hunt/

https://www.courtlistener.com/api/rest/v3/clusters/4618957/

2018-058

The False Claims Act contains two limitations periods that apply to a “civil action under section 3730”—that is, an action asserting that a person presented false claims to the United States Government. 31 U.S. C. §3731(b). The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsi- bility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period. This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are “civil action[s] under section 3730” and that the limitations periods in §3731(b) apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit 2 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court cannot be deemed the official of the United States. We agree, and therefore affirm. I As relevant, the False Claims Act imposes civil liability on “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the Government or to certain third parties acting on the Government’s behalf. 31 U.S. C. §§3729(a), (b)(2). Section 3730 authorizes two types of actions: First, the Attorney General, who “diligently shall investigate a violation under section 3729,” may bring a civil action against the alleged false claimant. §3730(a). Second, a private person, known as a relator, may bring a qui tam civil action “for the person and for the United States Gov- ernment” against the alleged false claimant, “in the name of the Government.” §3730(b). If a relator initiates the action, he must deliver a copy of the complaint and supporting evidence to the Government, which then has 60 days to intervene in the action. §§3730(b)(2), (4). During this time, the complaint remains sealed. §3730(b)(2). If the Government intervenes, it assumes primary responsibility for prosecuting the action, though the relator may continue to participate. §3730(c). Otherwise, the relator has the right to pursue the action. §§3730(b)(4), (c)(3). Even if it does not intervene, the Government is entitled to be served with all pleadings upon request and may intervene at any time with good cause. §3730(c)(3). The relator receives a share of any proceeds from the action—generally 15 to 25 percent if the Government intervenes, and 25 to 30 percent if it does not—plus attorney’s fees and costs. §§3730(d)(1)–(2). See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 769–770 (2000). At issue here is the Act’s statute of limitations, which provides: Cite as: 587 U. S. ____ (2019) 3 Opinion of the Court “(b) A civil action under section 3730 may not be brought— “(1) more than 6 years after the date on which the violation of section 3729 is committed, or “(2) more than 3 years after the date when facts ma- terial to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the cir- cumstances, but in no event more than 10 years after the date on which the violation is committed, “whichever occurs last.” §3731(b). On November 27, 2013, respondent Billy Joe Hunt filed a complaint alleging that petitioners—two defense con- tractors (collectively, Cochise)—defrauded the Govern- ment by submitting false claims for payment under a subcontract to provide security services in Iraq “from some time prior to January 2006 until early 2007.” App. 43a. A little less than three years before bringing his complaint, Hunt was interviewed by federal agents about his role in an unrelated contracting fraud in Iraq. Hunt claims to have revealed Cochise’s allegedly fraudulent scheme during this November 30, 2010, interview. The United States declined to intervene in Hunt’s ac- tion, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt conceded that the 6-year limitations period in §3731(b)(1) had elapsed before he filed suit on November 27, 2013. But Hunt argued that his complaint was timely under §3731(b)(2) because it was filed within 3 years of the interview in which he informed federal agents about the alleged fraud (and within 10 years after the violation occurred). The District Court dismissed the action. It considered three potential interpretations of §3731(b). Under the first interpretation, §3731(b)(2) does not apply to a relator- initiated action in which the Government elects not to 4 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court intervene, so any such action must be filed within six years after the violation. Under the second interpretation, §3731(b)(2) applies in nonintervened actions, and the limitations period begins when the relator knew or should have known the relevant facts. Under the third interpre- tation, §3731(b)(2) applies in nonintervened actions, and the limitations period begins when “the official of the United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts. The District Court rejected the third interpretation and declined to choose between the first two because it found that Hunt’s complaint would be untimely under either. The Court of Appeals reversed and remanded, adopting the third interpretation. 887 F.3d 1081 (CA11 2018). Given a conflict between the Courts of Appeals,* we granted certiorari. 586 U. S. ___ (2018). II The first question before us is whether the limitations period in §3731(b)(2) is available in a relator-initiated suit in which the Government has declined to intervene. If so, the second question is whether the relator in such a case should be considered “the official of the United States” whose knowledge triggers §3731(b)(2)’s 3-year limitations period. A Section 3731(b) sets forth two limitations periods that apply to “civil action[s] under section 3730.” Both —————— *Compare 887 F.3d 1081, 1089–1097 (CA11 2018) (adopting the third interpretation), with United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1216–1218 (CA9 1996) (adopting the second interpreta- tion); United States ex rel. Sanders v. North Am. Bus Industries, Inc., 546 F.3d 288, 293–294 (CA4 2008) (adopting the first interpretation); and United States ex rel. Sikkenga v. Regence Bluecross Blueshield of Utah, 472 F.3d 702, 725–726 (CA10 2006) (same). Cite as: 587 U. S. ____ (2019) 5 Opinion of the Court Government-initiated suits under §3730(a) and relator- initiated suits under §3730(b) are “civil action[s] under section 3730.” Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits. Cochise agrees with that view as to the limitations period in §3731(b)(1), but argues that the period in §3731(b)(2) is available in a relator-initiated suit only if the Government intervenes. According to Cochise, start- ing a limitations period when the party entitled to bring a claim learns the relevant facts is a default rule of tolling provisions, so subsection (b)(2) should be read to apply only when the Government is a party. In short, under Cochise’s reading, a relator-initiated, nonintervened suit is a “civil action under section 3730” for purposes of sub- section (b)(1) but not subsection (b)(2). This reading is at odds with fundamental rules of statu- tory interpretation. In all but the most unusual situa- tions, a single use of a statutory phrase must have a fixed meaning. See Ratzlaf v. United States, 510 U.S. 135, 143 (1994). We therefore avoid interpretations that would “attribute different meanings to the same phrase.” Reno v. Bossier Parish School Bd., 528 U.S. 320, 329 (2000). Here, either a relator-initiated, nonintervened suit is a “civil action under section 3730”—and thus subject to the limitations periods in subsections (b)(1) and (b)(2)—or it is not. It is such an action. Whatever the default tolling rule might be, the clear text of the statute controls this case. Under Cochise’s reading, a relator-initiated civil action would convert to “[a] civil action under section 3730” for purposes of subsection (b)(2) if and when the Government intervenes. That reading cannot be correct. If the Gov- ernment intervenes, the civil action remains the same—it simply has one additional party. There is no textual basis to base the meaning of “[a] civil action under section 3730” on whether the Government has intervened. 6 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court Cochise relies on our decision in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409 (2005), which addressed the question whether §3731(b)(1) or federal common law provided the limitations period for §3730(h) retaliation actions. Section 3730(h) creates a cause of action for an employee who suffers retaliation for, among other things, assisting with the prosecution of a False Claims Act action. At the time, §3730(h) did not specify a time limit for bringing a retalia- tion action, so the question before us was whether the phrase “civil action under section 3730” in §3731(b) en- compassed actions under §3730(h). We considered the statute “ambiguous because its text, literally read, admits of two plausible interpretations.” Id., at 419, n. 2. One reading was that a “civil action under section 3730” in- cludes §3730(h) actions because such actions arise under §3730. Id., at 415. “Another reasonable reading” was that a “civil action under section 3730” “applies only to actions arising under §§3730(a) and (b)” because “§3731(b)(1) t[ies] the start of the time limit to ‘the date on which the violation of section 3729 is committed.’ ” Ibid. That read- ing had force because retaliation claims need not involve an actual violation of §3729. Ibid. Looking to statutory context, we explained that the phrase “ ‘civil action under section 3730’ means only those civil actions under §3730 that have as an element a ‘violation of section 3729,’ that is, §§3730(a) and (b) actions”—not §3730(h) retaliation actions. Id., at 421–422. A relator-initiated, nonintervened suit arises under §3730(b) and has as an element a violation of §3729. Graham County supports our reading. Nonetheless, Co- chise points out that in considering the statutory context, we discussed a similar phrase contained in §3731(c) (now §3731(d)), which stated: “In any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including Cite as: 587 U. S. ____ (2019) 7 Opinion of the Court damages, by a preponderance of the evidence.” (Emphasis added.) We explained that §3731(c) “use[d] the similarly unqualified phrase ‘action brought under section 3730’ to refer only to §§3730(a) and (b) actions.” Id., at 417–418. We then stated: “As [respondent] and the United States concede, the context of this provision implies that the phrase ‘any action brought under section 3730’ is limited to §3730(a) actions brought by the United States and §3730(b) actions in which the United States intervenes as a party, as those are the types of §3730 actions in which the United States necessarily participates.” Id., at 418. Cochise contends that we should adopt a similar con- struction of the phrase “civil action under section 3730” in §3731(b). We disagree. Our discussion of §3731(c) was focused on “the context of th[at] provision” and on whether it could be read to impose the burden of proof on the Gov- ernment even in cases where the Government did not participate. Id., at 418. Those considerations do not apply here; there is nothing illogical about reading §3731(b) to apply in accordance with its plain terms. Moreover, if a “civil action under section 3730” included only an action in which the Government participates for purposes of §3731(b)(2), then we would be obligated to give it a like meaning for purposes of §3731(b)(1). This would mean that a relator-initiated, nonintervened suit would be sub- ject to neither §3731(b)(1) nor §3731(b)(2)—a reading Cochise expressly disclaims. See Brief for Petitioners 20, n. 3. Nothing in Graham County supports giving the same phrase in §3731(b) two different meanings depending on whether the Government intervenes. Again pointing to Graham County, Cochise next con- tends that our reading would lead to “ ‘counterintuitive results.’ ” Brief for Petitioners 26. For instance, if the Government discovers the fraud on the day it occurred, it would have 6 years to bring suit, but if a relator instead discovers the fraud on the day it occurred and the Gov- 8 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court ernment does not discover it, the relator could have as many as 10 years to bring suit. That discrepancy arises because §3731(b)(2) begins its limitations period on the date that “the official of the United States charged with responsibility to act” obtained knowledge of the relevant facts. But we see nothing unusual about extending the limitations period when the Government official did not know and should not reasonably have known the relevant facts, given that the Government is the party harmed by the false claim and will receive the bulk of any recovery. See §3730(d). In any event, a result that “may seem odd . . . is not absurd.” Exxon Mobil Corp. v. Allapattah Ser- vices, Inc., 545 U.S. 546, 565 (2005). Although in Graham County we sought “a construction that avoids . . . counter- intuitive results,” there the text “admit[ted] of two plausi- ble interpretations.” 545 U.S., at 421, 419, n. 2. Here, Cochise points to no other plausible interpretation of the text, so the “ ‘judicial inquiry is complete.’ ” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 462 (2002). B Cochise’s fallback argument is that the relator in a nonintervened suit should be considered “the official of the United States charged with responsibility to act in the circumstances,” meaning that §3731(b)(2)’s 3-year limita- tions period would start when the relator knew or should have known about the fraud. But the statute provides no support for reading “the official of the United States” to encompass a private relator. First, a private relator is not an “official of the United States” in the ordinary sense of that phrase. A relator is neither appointed as an officer of the United States, see U. S. Const., Art. II, §2, cl. 2, nor employed by the United States. Indeed, the provision that authorizes qui tam suits is entitled “Actions by Private Persons.” §3730(b). Although that provision explains that the action is Cite as: 587 U. S. ____ (2019) 9 Opinion of the Court brought “for the person and for the United States Gov- ernment” and “in the name of the Government,” ibid., it does not make the relator anything other than a private person, much less “the official of the United States” refer- enced by the statute. Cf. Stevens, 529 U.S., at 773, n. 4 (“[A] qui tam relator is, in effect, suing as a partial as- signee of the United States” (emphasis deleted)). Second, the statute refers to “the” official “charged with responsibility to act in the circumstances.” The Govern- ment argues that, in context, “the” official refers to the Attorney General (or his delegate), who by statute “shall investigate a violation under section 3729.” §3730(a). Regardless of precisely which official or officials the stat- ute is referring to, §3731(b)(2)’s use of the definite article “the” suggests that Congress did not intend for any and all private relators to be considered “the official of the United States.” See Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (explaining that the “use of the definite article . . . indicates that there is generally only one” person covered). More fundamentally, private relators are not “charged with responsibility to act” in the sense contemplated by §3731(b), as they are not required to investigate or prose- cute a False Claims Act action. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed

The False Claims Act contains two limitations periods that apply to a “civil action under section 3730”—that is, an action asserting that a person presented false claims to the United States Government. 31 U.S. C. The first period requires that the action be brought within 6 years after the statutory violation occurred. The second period requires that the action be brought within 3 years after the United States official charged with the responsi- bility to act knew or should have known the relevant facts, but not more than 10 years after the violation. Whichever period provides the later date serves as the limitations period. This case requires us to decide how to calculate the limitations period for qui tam suits in which the United States does not intervene. The Court of Appeals held that these suits are “civil action[s] under section 3730” and that the limitations periods in apply in accordance with their terms, regardless of whether the United States intervenes. It further held that, for purposes of the second period, the private person who initiates the qui tam suit 2 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court cannot be deemed the official of the United States. We agree, and therefore affirm. I As relevant, the False Claims Act imposes civil liability on “any person” who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” to the Government or to certain third parties acting on the Government’s behalf. 31 U.S. C. (b)(2). Section 3730 authorizes two types of actions: First, the Attorney General, who “diligently shall investigate a violation under section 3729,” may bring a civil action against the alleged false claimant. Second, a private person, known as a relator, may bring a qui tam civil action “for the person and for the United States Gov- ernment” against the alleged false claimant, “in the name of the Government.” If a relator initiates the action, he must deliver a copy of the complaint and supporting evidence to the Government, which then has 60 days to intervene in the action. (4). During this time, the complaint remains sealed. If the Government intervenes, it assumes primary responsibility for prosecuting the action, though the relator may continue to participate. Otherwise, the relator has the right to pursue the action. (c)(3). Even if it does not intervene, the Government is entitled to be served with all pleadings upon request and may intervene at any time with good cause. The relator receives a share of any proceeds from the action—generally 15 to 25 percent if the Government intervenes, and 25 to 30 percent if it does not—plus attorney’s fees and costs. See Vermont Agency of Natural At issue here is the Act’s statute of limitations, which provides: Cite as: 587 U. S. (2019) 3 Opinion of the Court “(b) A civil action under section 3730 may not be brought— “(1) more than 6 years after the date on which the violation of section 3729 is committed, or “(2) more than 3 years after the date when facts ma- terial to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the cir- cumstances, but in no event more than 10 years after the date on which the violation is committed, “whichever occurs last.” On November 27, 2013, respondent Billy Joe Hunt filed a complaint alleging that petitioners—two defense con- tractors (collectively, Cochise)—defrauded the Govern- ment by submitting false claims for payment under a subcontract to provide security services in Iraq “from some time prior to January until early 2007.” App. 43a. A little less than three years before bringing his complaint, Hunt was interviewed by federal agents about his role in an unrelated contracting fraud in Iraq. Hunt claims to have revealed Cochise’s allegedly fraudulent scheme during this November 30, 2010, interview. The United States declined to intervene in Hunt’s ac- tion, and Cochise moved to dismiss the complaint as barred by the statute of limitations. Hunt conceded that the 6-year limitations period in (1) had elapsed before he filed suit on November 27, 2013. But Hunt argued that his complaint was timely under (2) because it was filed within 3 years of the interview in which he informed federal agents about the alleged fraud (and within 10 years after the violation occurred). The District Court dismissed the action. It considered three potential interpretations of Under the first interpretation, (2) does not apply to a relator- initiated action in which the Government elects not to 4 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court intervene, so any such action must be filed within six years after the violation. Under the second interpretation, (2) applies in nonintervened actions, and the limitations period begins when the relator knew or should have known the relevant facts. Under the third interpre- tation, (2) applies in nonintervened actions, and the limitations period begins when “the official of the United States charged with responsibility to act in the circumstances” knew or should have known the relevant facts. The District Court rejected the third interpretation and declined to choose between the first two because it found that Hunt’s complaint would be untimely under either. The Court of Appeals reversed and remanded, adopting the third interpretation. Given a conflict between the Courts of Appeals,* we granted certiorari. 586 U. S. II The first question before us is whether the limitations period in (2) is available in a relator-initiated suit in which the Government has declined to intervene. If so, the second question is whether the relator in such a case should be considered “the official of the United States” whose knowledge triggers (2)’s 3-year limitations period. A Section 3731(b) sets forth two limitations periods that apply to “civil action[s] under section 3730.” Both —————— *Compare (adopting the third interpretation), with United States ex rel. (adopting the second interpreta- tion); United States ex rel. ; and United States ex rel. Cite as: 587 U. S. (2019) 5 Opinion of the Court Government-initiated suits under and relator- initiated suits under are “civil action[s] under section 3730.” Thus, the plain text of the statute makes the two limitations periods applicable in both types of suits. Cochise agrees with that view as to the limitations period in (1), but argues that the period in (2) is available in a relator-initiated suit only if the Government intervenes. According to Cochise, start- ing a limitations period when the party entitled to bring a claim learns the relevant facts is a default rule of tolling provisions, so subsection (b)(2) should be read to apply only when the Government is a party. In short, under Cochise’s reading, a relator-initiated, nonintervened suit is a “civil action under section 3730” for purposes of sub- section (b)(1) but not subsection (b)(2). This reading is at odds with fundamental rules of statu- tory interpretation. In all but the most unusual situa- tions, a single use of a statutory phrase must have a fixed meaning. See (1994). We therefore avoid interpretations that would “attribute different meanings to the same phrase.” Reno v. Bossier Parish School Bd., Here, either a relator-initiated, nonintervened suit is a “civil action under section 3730”—and thus subject to the limitations periods in subsections (b)(1) and (b)(2)—or it is not. It is such an action. Whatever the default tolling rule might be, the clear text of the statute controls this case. Under Cochise’s reading, a relator-initiated civil action would convert to “[a] civil action under section 3730” for purposes of subsection (b)(2) if and when the Government intervenes. That reading cannot be correct. If the Gov- ernment intervenes, the civil action remains the same—it simply has one additional party. There is no textual basis to base the meaning of “[a] civil action under section 3730” on whether the Government has intervened. 6 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court Cochise relies on our decision in Graham County Soil & Water Conservation which addressed the question whether (1) or federal common law provided the limitations period for retaliation actions. Section 3730(h) creates a cause of action for an employee who suffers retaliation for, among other things, assisting with the prosecution of a False Claims Act action. At the time, did not specify a time limit for bringing a retalia- tion action, so the question before us was whether the phrase “civil action under section 3730” in en- compassed actions under We considered the statute “ambiguous because its text, literally read, admits of two plausible interpretations.” One reading was that a “civil action under section 3730” in- cludes actions because such actions arise under “Another reasonable reading” was that a “civil action under section 3730” “applies only to actions arising under § and (b)” because “(1) t[ies] the start of the time limit to ‘the date on which the violation of section 3729 is committed.’ ” That read- ing had force because retaliation claims need not involve an actual violation of Looking to statutory context, we explained that the phrase “ ‘civil action under section 3730’ means only those civil actions under that have as an element a ‘violation of section 3729,’ that is, § and (b) actions”—not retaliation actions. at 421–422. A relator-initiated, nonintervened suit arises under and has as an element a violation of Graham County supports our reading. Nonetheless, Co- chise points out that in considering the statutory context, we discussed a similar phrase contained in (now which stated: “In any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including Cite as: 587 U. S. (2019) 7 Opinion of the Court damages, by a preponderance of the evidence.” (Emphasis added.) We explained that “use[d] the similarly unqualified phrase ‘action brought under section 3730’ to refer only to § and (b) actions.” at 417–418. We then stated: “As [respondent] and the United States concede, the context of this provision implies that the phrase ‘any action brought under section 3730’ is limited to actions brought by the United States and actions in which the United States intervenes as a party, as those are the types of actions in which the United States necessarily participates.” Cochise contends that we should adopt a similar con- struction of the phrase “civil action under section 3730” in We disagree. Our discussion of was focused on “the context of th[at] provision” and on whether it could be read to impose the burden of proof on the Gov- ernment even in cases where the Government did not participate. Those considerations do not apply here; there is nothing illogical about reading to apply in accordance with its plain terms. Moreover, if a “civil action under section 3730” included only an action in which the Government participates for purposes of (2), then we would be obligated to give it a like meaning for purposes of (1). This would mean that a relator-initiated, nonintervened suit would be sub- ject to neither (1) nor (2)—a reading Cochise expressly disclaims. See Brief for Petitioners 20, n. 3. Nothing in Graham County supports giving the same phrase in two different meanings depending on whether the Government intervenes. Again pointing to Graham County, Cochise next con- tends that our reading would lead to “ ‘counterintuitive results.’ ” Brief for Petitioners 26. For instance, if the Government discovers the fraud on the day it occurred, it would have 6 years to bring suit, but if a relator instead discovers the fraud on the day it occurred and the Gov- 8 COCHISE CONSULTANCY, INC. v. UNITED STATES EX REL. HUNT Opinion of the Court ernment does not discover it, the relator could have as many as 10 years to bring suit. That discrepancy arises because (2) begins its limitations period on the date that “the official of the United States charged with responsibility to act” obtained knowledge of the relevant facts. But we see nothing unusual about extending the limitations period when the Government official did not know and should not reasonably have known the relevant facts, given that the Government is the party harmed by the false claim and will receive the bulk of any recovery. See (d). In any event, a result that “may seem odd is not absurd.” Exxon Mobil Although in Graham County we sought “a construction that avoids counter- intuitive results,” there the text “admit[ted] of two plausi- ble interpretations.” 419, n. 2. Here, Cochise points to no other plausible interpretation of the text, so the “ ‘judicial inquiry is complete.’ ” Barnhart v. Sigmon Coal Co., B Cochise’s fallback argument is that the relator in a nonintervened suit should be considered “the official of the United States charged with responsibility to act in the circumstances,” meaning that (2)’s 3-year limita- tions period would start when the relator knew or should have known about the fraud. But the statute provides no support for reading “the official of the United States” to encompass a private relator. First, a private relator is not an “official of the United States” in the ordinary sense of that phrase. A relator is neither appointed as an officer of the United States, see U. S. Const., Art. II, cl. 2, nor employed by the United States. Indeed, the provision that authorizes qui tam suits is entitled “Actions by Private Persons.” Although that provision explains that the action is Cite as: 587 U. S. (2019) 9 Opinion of the Court brought “for the person and for the United States Gov- ernment” and “in the name of the Government,” ibid., it does not make the relator anything other than a private person, much less “the official of the United States” refer- enced by the statute. Cf. n. 4 (“[A] qui tam relator is, in effect, suing as a partial as- signee of the United States” (emphasis deleted)). Second, the statute refers to “the” official “charged with responsibility to act in the circumstances.” The Govern- ment argues that, in context, “the” official refers to the Attorney General (or his delegate), who by statute “shall investigate a violation under section 3729.” Regardless of precisely which official or officials the stat- ute is referring to, (2)’s use of the definite article “the” suggests that Congress did not intend for any and all private relators to be considered “the official of the United States.” See (2004) (explaining that the “use of the definite article indicates that there is generally only one” person covered). More fundamentally, private relators are not “charged with responsibility to act” in the sense contemplated by as they are not required to investigate or prose- cute a False Claims Act action. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed

Justice Scalia

majority

INS v. Yueh-Shaio Yang

1996-11-13

https://www.courtlistener.com/opinion/1087896/ins-v-yueh-shaio-yang/

https://www.courtlistener.com/api/rest/v3/clusters/1087896/

1996-004

This case presents the question whether the Attorney General, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act (INA), 95 Stat. 1616, as amended, 8 U.S. C. § 1251(a)(1)(H), may take into account acts of fraud committed by the alien in connection with his entry into the United States. Respondent Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People's Republic of China, and subsequently moved to Taiwan. In order to gain entry to the United States, they executed the following scheme: After divorcing respondent in Taiwan, Hai-Hsia traveled to the United States in 1978 and, using $60,000 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wong, a United States citizen. Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen. In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization, which fraudulently stated that his wife "Mary" was a United States citizen by birth and that respondent had been lawfully admitted *28 for permanent residence. In 1985, while respondent's naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name (as the relative of a daughter who had obtained United States citizenship). The Immigration and Naturalization Service (INS) ultimately learned of respondent's unlawful entry, and in 1992 issued an order to show cause why he should not be deported. The INS maintained that respondent was deportable under 8 U.S. C. § 1251(a)(1)(A), because he was excludable from the United States at the time of entry under the former 8 U.S. C. §§ 1182(a)(14), (19), and (20) (1988 ed.). Respondent conceded that he was deportable and filed a request for a waiver of deportation under § 1251(a)(1)(H). The Board of Immigration Appeals affirmed the Immigration Judge's denial of this request. The Board concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. Although the Board did not consider respondent's fraudulent entry in 1978 as itself an adverse factor, it did consider, among other things, respondent's "acts of immigration fraud before and after his 1978 entry into the United States," App. to Pet. for Cert. 10a, including his first sham divorce to facilitate his wife's unlawful entry, his 1982 application for naturalization, and his second sham divorce to assist his wife in obtaining an immigrant visa under her real name. The Court of Appeals for the Ninth Circuit granted respondent's petition for review, vacated the Board's decision, and remanded the case for further proceedings. Yang v. INS, 58 F.3d 452 (1995). The Ninth Circuit held that the Board abused its discretion by considering as an adverse factor respondent's participation in his wife's fraudulent entry, because those acts were "inextricably intertwined with Mr. Yang's own efforts to secure entry into the country and must be considered part of the initial fraud." Id. , at 453. The Ninth Circuit also concluded that the Board improperly *29 considered respondent's fraudulent application for naturalization as an adverse factor because that application "must be considered an extension of the initial fraud." Ibid. We granted certiorari. 516 U.S. 1110 (1996).[1] Section 1251(a)(1)(H) provides, in relevant part, as follows: "The provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 1182(a)(6)(C)(i) of this title [who have obtained a visa, documentation, entry or INA benefit by fraud or misrepresentation] . . . may, in the discretion of the Attorney General, be waived for any alien . . . who— "(i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and "(ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title [relating to possession of valid labor certifications, immigrant visas and entry documents] which were a direct result of that fraud or misrepresentation."[2]*30 The meaning of this language is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General (or her delegate, the INS, see 8 CFR § 2.1 (1996)) may consider in determining who, among the class of eligible aliens, should be granted relief. We have described the Attorney General's suspension of deportation under a related and similarly phrased provision of the INA as "`an act of grace' " which is accorded pursuant to her "unfettered discretion," Jay v. Boyd, 351 U.S. 345, 354 (1956) (quoting Escoe v. Zerbst, 295 U.S. 490, 492 (1935)), and have quoted approvingly Judge Learned Hand's likening of that provision to "`a judge's power to suspend the execution of a sentence, or the President's to pardon a convict,' " 351 U. S., at 354, n. 16 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (CA2 1950)). Respondent contends, however, that the portion of § 1251(a)(1)(H)(ii) requiring the alien to be "otherwise admissible"—that is, not excludable on some ground other than the entry fraud—precludes the Attorney General from considering the alien's fraudulent entry at all. The text will not bear such a reading. Unlike the prior version of the waiver-ofdeportation statute at issue in INS v. Errico, 385 U.S. 214 (1966), under which the Attorney General had no discretion to deny a waiver if the statutory requirements were met, satisfaction of the requirements under § 1251(a)(1)(H), including *31 the requirement that the alien have been "otherwise admissible," establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace. It could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. But that is a far cry from respondent's argument that all entry fraud must be excused, which is untenable. Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination. See Delmundo v. INS, 43 F.3d 436, 440 (CA9 1994). This is such a generous disposition that it may suggest a belief on the part of the agency that the statute requires it; and such a belief is also suggested by the INS's frequent concessions in litigation that the underlying fraud for which the alien is deportable "should not be considered as an adverse factor in the balancing equation," Liwanag v. INS, 872 F.2d 685, 687 (CA5 1989); see also Braun v. INS, 992 F.2d 1016, 1020 (CA9 1993); Start v. INS, 803 F.2d 539, 542 (CA9 1986), withdrawn, 862 F.2d 787 (1988). (Such concessions were facilitated, no doubt, by the Ninth Circuit's frequent intimations that the statute forbade consideration of the initial fraud. See HernandezRobledo v. INS, 777 F.2d 536, 541 (1985); see also Braun, supra, at 1020; Delmundo, supra, at 441.) Before us, however, the United States disclaims such a position—and even if that were the agency's view we could not permit it to overcome the unmistakable text of the law. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 229-230 (1994). But that does not render the *32 INS's practice irrelevant. Though the agency's discretion is unfettered at the outset, if it announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as "arbitrary, capricious, [or] an abuse of discretion" within the meaning of the Administrative Procedure Act, 5 U.S. C. § 706(2)(A). The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes "entry fraud" under that policy, excluding events removed in time and circumstance from respondent's entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The "entry fraud" exception being, under the current statute, a rule of the INS's own invention, the INS is entitled, within reason, to define that exception as it pleases. The Ninth Circuit held that the acts of fraud counted against respondent can be described as "inextricably intertwined" with, or an "extension" of, the fraudulent entry itself because they were essential to its ultimate success or concealment. Perhaps so, but it is up to the Attorney General whether she will adopt an "inextricably intertwined" or "essential extension" augmentation of her "entry fraud" exception. It is assuredly rational, and therefore lawful, for her to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. The judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered.

This case presents the question whether the Attorney General, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act (INA), as amended, 8 U.S. C. 1251(a)(1)(H), may take into account acts of fraud committed by the alien in connection with his entry into the United States. Respondent Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People's Republic of China, and subsequently moved to Taiwan. In order to gain entry to the United States, they executed the following scheme: After divorcing respondent in Taiwan, Hai-Hsia traveled to the United States in 1978 and, using $60,000 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wong, a United States citizen. Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen. In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization, which fraudulently stated that his wife "Mary" was a United States citizen by birth and that respondent had been lawfully admitted *28 for permanent residence. In while respondent's naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name (as the relative of a daughter who had obtained United States citizenship). The Immigration and Naturalization Service (INS) ultimately learned of respondent's unlawful entry, and in 1992 issued an order to show cause why he should not be deported. The INS maintained that respondent was deportable under 8 U.S. C. 1251(a)(1)(A), because he was excludable from the United States at the time of entry under the former 8 U.S. C. 1182(a)(14), (19), and (20) ( ed.). Respondent conceded that he was deportable and filed a request for a waiver of deportation under 1251(a)(1)(H). The Board of Immigration Appeals affirmed the Immigration Judge's denial of this request. The Board concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. Although the Board did not consider respondent's fraudulent entry in 1978 as itself an adverse factor, it did consider, among other things, respondent's "acts of immigration fraud before and after his 1978 entry into the United States," App. to Pet. for Cert. 10a, including his first sham divorce to facilitate his wife's unlawful entry, his 1982 application for naturalization, and his second sham divorce to assist his wife in obtaining an immigrant visa under her real name. The Court of Appeals for the Ninth Circuit granted respondent's petition for review, vacated the Board's decision, and remanded the case for further proceedings. The Ninth Circuit held that the Board abused its discretion by considering as an adverse factor respondent's participation in his wife's fraudulent entry, because those acts were "inextricably intertwined with Mr. Yang's own efforts to secure entry into the country and must be considered part of the initial fraud." at 453. The Ninth Circuit also concluded that the Board improperly *29 considered respondent's fraudulent application for naturalization as an adverse factor because that application "must be considered an extension of the initial fraud." We granted certiorari.[1] Section 1251(a)(1)(H) provides, in relevant part, as follows: "The provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 1182(a)(6)(C)(i) of this title [who have obtained a visa, documentation, entry or INA benefit by fraud or misrepresentation] may, in the discretion of the Attorney General, be waived for any alien who— "(i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and "(ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title [relating to possession of valid labor certifications, immigrant visas and entry documents] which were a direct result of that fraud or misrepresentation."[2]*30 The meaning of this language is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General ) may consider in determining who, among the class of eligible aliens, should be granted relief. We have described the Attorney General's suspension of deportation under a related and similarly phrased provision of the INA as "`an act of grace' " which is accorded pursuant to her "unfettered discretion," and have quoted approvingly Judge Learned Hand's likening of that provision to "`a judge's power to suspend the execution of a sentence, or the President's to pardon a convict,' " 351 U. S., at n. 16 ). Respondent contends, however, that the portion of 1251(a)(1)(H)(ii) requiring the alien to be "otherwise admissible"—that is, not excludable on some ground other than the entry fraud—precludes the Attorney General from considering the alien's fraudulent entry at all. The text will not bear such a reading. Unlike the prior version of the waiver-ofdeportation statute at issue in under which the Attorney General had no discretion to deny a waiver if the statutory requirements were met, satisfaction of the requirements under 1251(a)(1)(H), including *31 the requirement that the alien have been "otherwise admissible," establishes only the alien's eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace. It could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. But that is a far cry from respondent's argument that all entry fraud must be excused, which is untenable. Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination. See This is such a generous disposition that it may suggest a belief on the part of the agency that the statute requires it; and such a belief is also suggested by the INS's frequent concessions in litigation that the underlying fraud for which the alien is deportable "should not be considered as an adverse factor in the balancing equation," ; see also ; withdrawn, ; see also at ;) Before us, however, the United States disclaims such a position—and even if that were the agency's view we could not permit it to overcome the unmistakable text of the law. See MCI Telecommunications But that does not render the *32 INS's practice irrelevant. Though the agency's discretion is unfettered at the outset, if it announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as "arbitrary, capricious, [or] an abuse of discretion" within the meaning of the Administrative Procedure Act, 5 U.S. C. 706(2)(A). The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes "entry fraud" under that policy, excluding events removed in time and circumstance from respondent's entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The "entry fraud" exception being, under the current statute, a rule of the INS's own invention, the INS is entitled, within reason, to define that exception as it pleases. The Ninth Circuit held that the acts of fraud counted against respondent can be described as "inextricably intertwined" with, or an "extension" of, the fraudulent entry itself because they were essential to its ultimate success or concealment. Perhaps so, but it is up to the Attorney General whether she will adopt an "inextricably intertwined" or "essential extension" augmentation of her "entry fraud" exception. It is assuredly rational, and therefore lawful, for her to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. The judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered.

per_curiam

per_curiam

Roper v. Weaver

2007-05-21

https://www.courtlistener.com/opinion/145729/roper-v-weaver/

https://www.courtlistener.com/api/rest/v3/clusters/145729/

2006-046

We granted certiorari in this case, 549 U.S. ___, 127 S. Ct. 763, 166 L. Ed. 2d 590 (2006), to decide whether the Court of Appeals had exceeded its authority under 28 U.S.C. § 2254(d)(1) by setting aside a capital sentence on the ground that the prosecutor's closing statement was "unfairly inflammatory." Weaver v. Bowersox, 438 F.3d 832, 841 (C.A.8 2006). Our primary concern was whether the Court of Appeals' application of the more stringent standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, (AEDPA), 110 Stat. 1214, was consistent with our interpretation of that statute. Cf. Carey v. Musladin, 549 U.S. ___, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). We are now aware of circumstances that persuade us that dismissal of the writ is the appropriate manner in which to dispose of this case. The argument made by the prosecutor in this case was essentially the same as the *2023 argument that he made in two other cases—one of which involved respondent's codefendant. See Shurn v. Delo, 177 F.3d 662, 666 (C.A.8 1999); Newlon v. Armontrout, 693 F. Supp. 799 (W.D.Mo.1988), aff'd, 885 F.2d 1328 (C.A.8 1989). In each of those cases, the defendant received a death sentence. Also in each case, the defendant filed a petition seeking federal habeas relief before AEDPA's effective date. Federal habeas relief was granted in all three cases. The State does not question the propriety of relief in the other two cases because it was clear at the time, as it is now, that AEDPA did not apply to either of them. Respondent argues, for the following reasons, that AEDPA should not govern his case either. Like the defendants in Newlon and Shurn, respondent filed his federal habeas petition before the effective date of AEDPA. Instead of considering respondent's claims, however, the District Court sua sponte stayed the habeas proceedings, noting that respondent had indicated his intention to file a petition for writ of certiorari seeking this Court's review of the state courts' denial of postconviction relief. Though the District Court recognized that respondent was not required to seek certiorari from this Court, it concluded that, if "a state prisoner chooses to pursue writ of certiorari, he must first exhaust that remedy before filing a federal habeas corpus petition." App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 15. Thus, the District Court put respondent to a choice: He could forgo filing a petition for certiorari, or his habeas petition would be dismissed. Respondent moved for reconsideration and for the appointment of counsel. The District Court denied both motions, reiterating its view that if respondent sought certiorari, his federal habeas petition would be premature. When respondent notified the District Court that a petition for certiorari had been filed, the court made good on its promise: It dismissed respondent's habeas petition "without prejudice" to his refiling "following exhaustion of his state proceedings." Id., at 13. Though respondent had filed his habeas petition before AEDPA took effect, the District Court dismissed his petition after the statute was in force. Still without an attorney, respondent requested a certificate of appealability from the District Court. The court denied the request, opining that reasonable jurists could not disagree with the dismissal of respondent's petition. Id., at 5-6. Respondent also filed a notice of appeal, which the Court of Appeals construed as a request for a certificate of appealability and rejected.[*] Respondent refiled his habeas petition after this Court denied review of his state postconviction proceedings. The Eighth Circuit eventually concluded that, because respondent's petition was filed after AEDPA's effective date, his claims must be evaluated under that statute's strict standard of review. See Weaver v. Bowersox, 241 F.3d 1024, 1029 (2001). Our recent decision in Lawrence v. Florida, 549 U.S. ___, 127 S. Ct. 1079, ___ L.Ed.2d ___ (2007), conclusively establishes that the District Court was wrong to conclude that, if respondent chose to seek certiorari, he had to exhaust that remedy before filing a federal habeas petition. Lawrence clarified that "[s]tate review ends when the state courts have finally *2024 resolved an application for state postconviction relief"—even if a prisoner files a certiorari petition. Id., at ___, 127 S.Ct. at 1083; see also id., at ___ - ___, 127 S.Ct. at 1083-85 ("[W]e have said that state prisoners need not petition for certiorari to exhaust state remedies" (citing Fay v. Noia, 372 U.S. 391, 435-438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963))). Thus, respondent's habeas petition, which was fully exhausted when filed, did not become unexhausted upon his decision to seek certiorari. Because the petition was not premature, the District Court had no cause to dismiss it. Whether this unusual procedural history leads to the conclusion, as respondent colorably contends, that the AEDPA standard is simply inapplicable to this case, is a question we find unnecessary to resolve. Regardless of the answer to that question, we find it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the District Court erroneously dismissed respondent's pre-AEDPA petition. Accordingly, the writ of certiorari is dismissed as improvidently granted. It is so ordered. Chief Justice ROBERTS, concurring in the result. While I do not agree with all the reasons given in the per curiam for the discretionary decision to dismiss the writ as improvidently granted in this case, I do agree with that disposition.

We granted certiorari in this case, 549 U.S. to decide whether the Court of Appeals had exceeded its authority under (d)(1) by setting aside a capital sentence on the ground that the prosecutor's closing statement was "unfairly inflammatory." Our primary concern was whether the Court of Appeals' application of the more stringent standard of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996, (AEDPA), was consistent with our interpretation of that statute. Cf. We are now aware of circumstances that persuade us that dismissal of the writ is the appropriate manner in which to dispose of this case. The argument made by the prosecutor in this case was essentially the same as the *2023 argument that he made in two other cases—one of which involved respondent's codefendant. See ; (W.D.Mo.1988), aff'd, In each of those cases, the defendant received a death sentence. Also in each case, the defendant filed a petition seeking federal habeas relief before AEDPA's effective date. Federal habeas relief was granted in all three cases. The State does not question the propriety of relief in the other two cases because it was clear at the time, as it is now, that AEDPA did not apply to either of them. Respondent argues, for the following reasons, that AEDPA should not govern his case either. Like the defendants in Newlon and Shurn, respondent filed his federal habeas petition before the effective date of AEDPA. Instead of considering respondent's claims, however, the District Court sua sponte stayed the habeas proceedings, noting that respondent had indicated his intention to file a petition for writ of certiorari seeking this Court's review of the state courts' denial of postconviction relief. Though the District Court recognized that respondent was not required to seek certiorari from this Court, it concluded that, if "a state prisoner chooses to pursue writ of certiorari, he must first exhaust that remedy before filing a federal habeas corpus petition." App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 15. Thus, the District Court put respondent to a choice: He could forgo filing a petition for certiorari, or his habeas petition would be dismissed. Respondent moved for reconsideration and for the appointment of counsel. The District Court denied both motions, reiterating its view that if respondent sought certiorari, his federal habeas petition would be premature. When respondent notified the District Court that a petition for certiorari had been filed, the court made good on its promise: It dismissed respondent's habeas petition "without prejudice" to his refiling "following exhaustion of his state proceedings." Though respondent had filed his habeas petition before AEDPA took effect, the District Court dismissed his petition after the statute was in force. Still without an attorney, respondent requested a certificate of appealability from the District Court. The court denied the request, opining that reasonable jurists could not disagree with the dismissal of respondent's petition. Respondent also filed a notice of appeal, which the Court of Appeals construed as a request for a certificate of appealability and rejected.[*] Respondent refiled his habeas petition after this Court denied review of his state postconviction proceedings. The Eighth Circuit eventually concluded that, because respondent's petition was filed after AEDPA's effective date, his claims must be evaluated under that statute's strict standard of review. See Our recent decision in conclusively establishes that the District Court was wrong to conclude that, if respondent chose to seek certiorari, he had to exhaust that remedy before filing a federal habeas petition. Lawrence clarified that "[s]tate review ends when the state courts have finally *2024 resolved an application for state postconviction relief"—even if a prisoner files a certiorari petition. at ; see also at - -85 )). Thus, respondent's habeas petition, which was fully exhausted when filed, did not become unexhausted upon his decision to seek certiorari. Because the petition was not premature, the District Court had no cause to dismiss it. Whether this unusual procedural history leads to the conclusion, as respondent colorably contends, that the AEDPA standard is simply inapplicable to this case, is a question we find unnecessary to resolve. Regardless of the answer to that question, we find it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the District Court erroneously dismissed respondent's pre-AEDPA petition. Accordingly, the writ of certiorari is dismissed as improvidently granted. It is so ordered. Chief Justice ROBERTS, concurring in the result. While I do not agree with all the reasons given in the per curiam for the discretionary decision to dismiss the writ as improvidently granted in this case, I do agree with that disposition.

Justice Scalia

dissenting

Roper v. Weaver

2007-05-21

https://www.courtlistener.com/opinion/145729/roper-v-weaver/

https://www.courtlistener.com/api/rest/v3/clusters/145729/

2006-046

The Eighth Circuit held in this case that the Missouri Supreme Court had unreasonably applied clearly established precedent of this Court in concluding that certain statements made by the prosecutor during the penalty phase of respondent's capital trial did not rise to the level of a due process violation. Weaver v. Bowersox, 438 F.3d 832, 839-842 (2006). As the Court says, ante, at 2022, we granted certiorari to decide whether this holding comported with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1). We received briefing, and heard an hour's argument, on that question. Yet now the Court declines to answer it, dismissing the writ as improvidently granted. The reason is that the Court has become "aware," ante, at 2022, that respondent's post-AEDPA habeas petition was filed only because the District Court had erroneously dismissed an earlier petition filed prior to AEDPA's effective date, ante, at 2023. Believing that respondent is "virtually identically situated" to two other litigants whose federal habeas petitions were not governed by AEDPA, and seeking to avoid "treat[ing the three] in a needlessly disparate manner ... simply because the District Court erroneously dismissed respondent's pre-AEDPA petition," the Court has decided to let stand the Eighth Circuit's flagrant misapplication of AEDPA, whether or not (and without deciding whether) AEDPA governs this case. Ante, at 2024. I fully agree with the Court that the District Court erred in dismissing respondent's pre-AEDPA petition, but that seems to me no justification for aborting this argued case. The District Court's previous error does not affect the legal conclusion that AEDPA applies to this new petition. And once it is admitted that AEDPA governs, the District Court's error should in no way alter our prior determination that the Eighth Circuit's application *2025 of AEDPA deserves our scrutiny. I discuss these two points in succession. I The Court provides no legal argument to support its assertion that respondent has a "colorabl[e]" claim, ante, at 2024, that the prior erroneous dismissal renders AEDPA inapplicable to this case. Nor does respondent. See Brief for Respondent 39, n. 44. I am aware of no authority supporting the proposition that respondent is legally or equitably entitled to evade the collateral consequences of the District Court's error. To begin with, any resort to equity would founder on respondent's failure to exhaust his appeals of the District Court's erroneous decision. See ante, at 2023, n. The Court is untroubled by respondent's lack of diligence because, it says, further appellate review "would almost certainly have been futile." Ibid. The Court does not explain the basis for this pessimistic assessment, but the reason seems to be its belief that the District Court's error was not clear until our recent decision in Lawrence v. Florida, 549 U.S. ___, 127 S. Ct. 1079 (2007). See ante, at 2023 (describing Lawrence as "clarif[ying]" the exhaustion rule). This seems to me quite wrong. The District Court's error was as apparent in 1996 as it was in 1966. In Fay v. Noia, 372 U.S. 391, 435-438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), we announced in no uncertain terms that a federal habeas petitioner need not seek certiorari in order to exhaust state-court remedies. "[N]o less an authority than Hart & Wechsler's The Federal Courts and the Federal System," Massachusetts v. EPA, 549 U.S. ___, ___, 127 S. Ct. 1438, 1455, n. 17, 167 L. Ed. 2d 248 (2007), has long understood Noia to stand for that proposition. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 1555 (3d ed.1988); id., at 1446 (4th ed.1996); id., at 1391 (5th ed.2003). Indeed, Lawrence's "clarifi[cation]" consisted of nothing more than citing the same old pages in Noia. See Lawrence, supra, 127 S.Ct. at 1083-85. It logically follows from Noia no less inescapably than from Lawrence that final disposition of a pending certiorari petition is also unnecessary to exhaust state-court remedies. That the District Court had erred was no mystery to respondent in 1996. He correctly asked the District Court to reconsider its decision to dismiss his habeas action, and instead to stay it pending disposition of his petition for certiorari (which is the proper procedural way to handle such duplicative filings). See App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 8-11 (hereinafter NACDL Brief). And he then filed a notice of appeal and unsuccessfully sought a certificate of appealability. See id., at 1-7. Respondent (who theretofore had shown himself to be a highly capable pro se litigant, undoubtedly aware of the availability of en banc and certiorari review) simply gave up too early. There is no more reason in this case than in any other to excuse the failure to make use of all available means of review. Far from thinking that a petition for certiorari "would almost certainly have been futile," ante, at 2023, n., I think it would almost certainly have been successful. We give special attention to capital cases (as today's delicate disposition shows), and since the District Court's denial of a certificate of appealability occurred on August 1, 1996, see App. to NACDL Brief 1, more than three months after AEDPA's effective date, see Woodford v. Garceau, 538 U.S. 202, 204, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003), it would have been obvious that our refusal to correct the District Court's *2026 clear error would subject this defendant's renewed request for federal habeas relief to AEDPA's restrictions. More fundamentally, however, even were the Court's conjecture correct that diligence on respondent's part would not have been rewarded, neither AEDPA nor any principle of law would entitle him to relief from the collateral consequences of an uncorrected judicial error. We held in Daniels v. United States, 532 U.S. 374, 382, 121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001) that "[i]f ... a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse." (Emphasis added.) If a defendant is subject to additional jail time because a prior erroneous conviction went unreversed, surely respondent cannot complain about the fact that the District Court's prior uncorrected error has caused this habeas petition to be subject to AEDPA's entirely reasonable restrictions.[*] II There having been eliminated the possibility that AEDPA is inapplicable to this case (and hence that the question on which we granted certiorari and heard argument is not presented) what possible justification remains for canceling our grant of certiorari after full briefing and argument? There disappears, along with the claim of AEDPA inapplicability, any substance to the Court's contention that respondent is "virtually identically situated" to the two other litigants with similar claims, and that he is being treated differently "simply because the District Court erroneously dismissed [his] pre-AEDPA petition." Ante, at 2024. No. He is being treated differently because he, unlike them, seeks federal habeas relief by means of a petition filed after AEDPA's effective date. Is what happened here any less rational, any less fair, a basis for differential treatment than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after? Would the Court entertain the thought that if those two petitions involved the same sort of closing argument by the same prosecutor, the second of them would have to be exempted from AEDPA? If anything, the differential treatment is more justified here, since the later filing was not randomly determined, but was likely the consequence of respondent's failure to exhaust his appeals. The Court seems to be affected by a vague and discomforting feeling that things are different now from what they were when we granted certiorari. They are so only in the respect that we now know, as we did not then, that respondent's earlier petition was wrongfully dismissed. That fact has relevance neither to the law governing this case (as discussed in Part I, supra) nor to any equities that might justify our bringing to naught the parties' briefing and arguments, and the Justices' deliberations, on the question for which this petition was granted. But what makes today's wasteful action particularly perverse is that it is the fault of respondent that we did not know of the wrongful dismissal earlier. Before we granted plenary review, respondent had never argued that AEDPA should not apply because of *2027 the District Court's error. He made no such claim either time he was before the Eighth Circuit. See Brief for Appellee in Bowersox v. Weaver, No. 99-3462, pp. xvii-xix; Brief for Appellee/Cross-Appellant in Bowersox v. Weaver, No. 03-2880 et al., p. 7. And, more significantly, he remained completely silent in his brief in opposition, despite his obligation to raise the issue under this Court's Rule 15.2. Indeed, even in respondent's merits brief, his argument (if it can be called that) consists of three sentences explaining the procedural history followed by a conclusory assertion, all buried in footnote 44 on page 39. Respondent's delayed invocation of this issue has not only not been sanctioned; it has been rewarded. Had respondent raised his specious claim of AEDPA inapplicability in a timely manner, petitioner would have had the opportunity to blow it out of the water. Whether by way of calculus or through dumb luck, respondent's tardiness has succeeded in confounding the Court. We promulgated Rule 15.2 precisely to prohibit such sandbagging—and to avoid the ill effects that minimal briefing has on the quality of our decisionmaking, as perfectly demonstrated by this case. Respondent and his counsel should not profit from their flouting of this Court's Rules. * * * I would thus answer the question on which we granted certiorari and received full briefing and argument. Because plenary review has convinced me beyond doubt that the Missouri Supreme Court did not unreasonably apply clearly established precedent of this Court, I would reverse the judgment of the Eighth Circuit. A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial—though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away—as perhaps the Court's own opinion can—as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it. For the foregoing reasons, I respectfully dissent.

The Eighth Circuit held in this case that the Missouri Supreme Court had unreasonably applied clearly established precedent of this Court in concluding that certain statements made by the prosecutor during the penalty phase of respondent's capital trial did not rise to the level of a due process violation. As the Court says, ante, at 2022, we granted certiorari to decide whether this holding comported with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), (d)(1). We received briefing, and heard an hour's argument, on that question. Yet now the Court declines to answer it, dismissing the writ as improvidently granted. The reason is that the Court has become "aware," ante, at 2022, that respondent's post-AEDPA habeas petition was filed only because the District Court had erroneously dismissed an earlier petition filed prior to AEDPA's effective date, ante, at 2023. Believing that respondent is "virtually identically situated" to two other litigants whose federal habeas petitions were not governed by AEDPA, and seeking to avoid "treat[ing the three] in a needlessly disparate manner simply because the District Court erroneously dismissed respondent's pre-AEDPA petition," the Court has decided to let stand the Eighth Circuit's flagrant misapplication of AEDPA, whether or not (and without deciding whether) AEDPA governs this case. Ante, at 2024. fully agree with the Court that the District Court erred in dismissing respondent's pre-AEDPA petition, but that seems to me no justification for aborting this argued case. The District Court's previous error does not affect the legal conclusion that AEDPA applies to this new petition. And once it is admitted that AEDPA governs, the District Court's error should in no way alter our prior determination that the Eighth Circuit's application *2025 of AEDPA deserves our scrutiny. discuss these two points in succession. The Court provides no legal argument to support its assertion that respondent has a "colorabl[e]" claim, ante, at 2024, that the prior erroneous dismissal renders AEDPA inapplicable to this case. Nor does respondent. See Brief for Respondent 39, n. 44. am aware of no authority supporting the proposition that respondent is legally or equitably entitled to evade the collateral consequences of the District Court's error. To begin with, any resort to equity would founder on respondent's failure to exhaust his appeals of the District Court's erroneous decision. See ante, at 2023, n. The Court is untroubled by respondent's lack of diligence because, it says, further appellate review "would almost certainly have been futile." The Court does not explain the basis for this pessimistic assessment, but the reason seems to be its belief that the District Court's error was not clear until our recent decision in See ante, at 2023 (describing as "clarif[ying]" the exhaustion rule). This seems to me quite wrong. The District Court's error was as apparent in 1996 as it was in 1966. n we announced in no uncertain terms that a federal habeas petitioner need not seek certiorari in order to exhaust state-court remedies. "[N]o less an authority than Hart & Wechsler's The Federal Courts and the Federal System," has long understood Noia to stand for that proposition. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 1555 (3d ed.1988); ; ndeed, 's "clarifi[cation]" consisted of nothing more than citing the same old pages in Noia. See -85. t logically follows from Noia no less inescapably than from that final disposition of a pending certiorari petition is also unnecessary to exhaust state-court remedies. That the District Court had erred was no mystery to respondent in 1996. He correctly asked the District Court to reconsider its decision to dismiss his habeas action, and instead to stay it pending disposition of his petition for certiorari (which is the proper procedural way to handle such duplicative filings). See App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 8-11 (hereinafter NACDL Brief). And he then filed a notice of appeal and unsuccessfully sought a certificate of appealability. See Respondent (who theretofore had shown himself to be a highly capable pro se litigant, undoubtedly aware of the availability of en banc and certiorari review) simply gave up too early. There is no more reason in this case than in any other to excuse the failure to make use of all available means of review. Far from thinking that a petition for certiorari "would almost certainly have been futile," ante, at 2023, n., think it would almost certainly have been successful. We give special attention to capital cases (as today's delicate disposition shows), and since the District Court's denial of a certificate of appealability occurred on August 1, 1996, see App. to NACDL Brief 1, more than three months after AEDPA's effective date, see it would have been obvious that our refusal to correct the District Court's *2026 clear error would subject this defendant's renewed request for federal habeas relief to AEDPA's restrictions. More fundamentally, however, even were the Court's conjecture correct that diligence on respondent's part would not have been rewarded, neither AEDPA nor any principle of law would entitle him to relief from the collateral consequences of an uncorrected judicial error. We held in that "[i]f a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), then that defendant is without recourse." (Emphasis added.) f a defendant is subject to additional jail time because a prior erroneous conviction went unreversed, surely respondent cannot complain about the fact that the District Court's prior uncorrected error has caused this habeas petition to be subject to AEDPA's entirely reasonable restrictions.[*] There having been eliminated the possibility that AEDPA is inapplicable to this case (and hence that the question on which we granted certiorari and heard argument is not presented) what possible justification remains for canceling our grant of certiorari after full briefing and argument? There disappears, along with the claim of AEDPA inapplicability, any substance to the Court's contention that respondent is "virtually identically situated" to the two other litigants with similar claims, and that he is being treated differently "simply because the District Court erroneously dismissed [his] pre-AEDPA petition." Ante, at 2024. No. He is being treated differently because he, unlike them, seeks federal habeas relief by means of a petition filed after AEDPA's effective date. s what happened here any less rational, any less fair, a basis for differential treatment than the random fact that one petitioner's habeas action was filed a day before AEDPA's effective date, and another petitioner's could not be filed until one day after? Would the Court entertain the thought that if those two petitions involved the same sort of closing argument by the same prosecutor, the second of them would have to be exempted from AEDPA? f anything, the differential treatment is more justified here, since the later filing was not randomly determined, but was likely the consequence of respondent's failure to exhaust his appeals. The Court seems to be affected by a vague and discomforting feeling that things are different now from what they were when we granted certiorari. They are so only in the respect that we now know, as we did not then, that respondent's earlier petition was wrongfully dismissed. That fact has relevance neither to the law governing this case (as discussed in Part nor to any equities that might justify our bringing to naught the parties' briefing and arguments, and the Justices' deliberations, on the question for which this petition was granted. But what makes today's wasteful action particularly perverse is that it is the fault of respondent that we did not know of the wrongful dismissal earlier. Before we granted plenary review, respondent had never argued that AEDPA should not apply because of *2027 the District Court's error. He made no such claim either time he was before the Eighth Circuit. See Brief for Appellee in Bowersox v. Weaver, No. 99-3462, pp. xvii-xix; Brief for Appellee/Cross-Appellant in Bowersox v. Weaver, No. 03-2880 et al., p. 7. And, more significantly, he remained completely silent in his brief in opposition, despite his obligation to raise the issue under this Court's Rule 15.2. ndeed, even in respondent's merits brief, his argument (if it can be called that) consists of three sentences explaining the procedural history followed by a conclusory assertion, all buried in footnote 44 on page 39. Respondent's delayed invocation of this issue has not only not been sanctioned; it has been rewarded. Had respondent raised his specious claim of AEDPA inapplicability in a timely manner, petitioner would have had the opportunity to blow it out of the water. Whether by way of calculus or through dumb luck, respondent's tardiness has succeeded in confounding the Court. We promulgated Rule 15.2 precisely to prohibit such sandbagging—and to avoid the ill effects that minimal briefing has on the quality of our decisionmaking, as perfectly demonstrated by this case. Respondent and his counsel should not profit from their flouting of this Court's Rules. * * * would thus answer the question on which we granted certiorari and received full briefing and argument. Because plenary review has convinced me beyond doubt that the Missouri Supreme Court did not unreasonably apply clearly established precedent of this Court, would reverse the judgment of the Eighth Circuit. A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial—though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away—as perhaps the Court's own opinion can—as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. t presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it. For the foregoing reasons, respectfully dissent.

Justice Kennedy

majority

Sorrell v. IMS Health Inc.

2011-06-23

https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/

https://www.courtlistener.com/api/rest/v3/clusters/219511/

Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing pur poses, or used for marketing by pharmaceutical manufac turers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that market ing will lead to prescription decisions not in the best inter ests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard. I A Pharmaceutical manufacturers promote their drugs to 2 SORRELL v. IMS HEALTH INC. Opinion of the Court doctors through a process called “detailing.” This often in- volves a scheduled visit to a doctor’s office to persuade the doctor to prescribe a particular pharmaceutical. De tailers bring drug samples as well as medical studies that explain the “details” and potential advantages of var ious prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and pur chasing preferences of their clientele, and pharmaceutical salespersons are no exception. Knowledge of a physi- cian’s prescription practices—called “prescriber-identifying information”—enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug’s patent expires, less expensive bioequivalent generic alternatives are manufactured and sold. Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when proc essing prescriptions. See 21 U.S. C. §353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their mar keting tactics and increase sales. In 2007, Vermont enacted the Prescription Confidential ity Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is §4631(d). “A health insurer, a self-insured employer, an elec Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court tronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents . . . . Pharmaceu tical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents . . . .” The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insur ers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar enti- ties from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provi sion’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber identifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. §4631(f). Separate statutory provisions elaborate the scope of the prohibitions set out in §4631(d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescrip tion drug.” §4631(b)(5). Section 4631(c)(1) further pro vides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying infor mation to be used for the purposes” identified in §4631(d). 4 SORRELL v. IMS HEALTH INC. Opinion of the Court Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriber identifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies, or preferred drug lists; for “care management educational communications provided to” pa tients on such matters as “treatment options”; for law enforcement operations; and for purposes “otherwise pro vided by law.” §4631(e). Act 80 also authorized funds for an “evidence-based pre scription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” §4622(a)(1). An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon ex pire. §4622(a)(2). Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 211; see also IMS Health Inc. v. Ayotte, 550 F.3d 42, 91 (CA1 2008) (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufac turers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may sup ply the prescriber-identifying information used in these programs. See App. 313; id., at 375 (“[W]e use the data given to us by the State of Pennsylvania . . . to figure out which physicians to talk to”); see also id., at 427–429 (Director of the Office of Vermont Health Access explain ing that the office collects prescriber-identifying informa tion but “does not at this point in time have a counter detailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court treatment options. The Vermont Legislature, however, later repealed that provision. 2008 Vt. Laws No. 89, §3. Act 80 was accompanied by legislative findings. Vt. Acts No. 80, §1. Vermont found, for example, that the “goals of marketing programs are often in conflict with the goals of the state” and that the “marketplace for ideas on medi cine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceuti cal marketing campaigns to doctors.” §§1(3), (4). Detail ing, in the legislature’s view, caused doctors to make decisions based on “incomplete and biased information.” §1(4). Because they “are unable to take the time to re search the quickly changing pharmaceutical market,” Vermont doctors “rely on information provided by phar maceutical representatives.” §1(13). The legislature further found that detailing increases the cost of health care and health insurance, §1(15); encourages hasty and excessive reliance on brand-name drugs, before the profes sion has observed their effectiveness as compared with older and less expensive generic alternatives, §1(7); and fosters disruptive and repeated marketing visits tanta mount to harassment, §§1(27)–(28). The legislative find ings further noted that use of prescriber-identifying in formation “increase[s] the effect of detailing programs” by allowing detailers to target their visits to particular doctors. §§1(23)–(26). Use of prescriber-identifying data also helps detailers shape their messages by “tailoring” their “presentations to individual prescriber styles, preferences, and attitudes.” §1(25). B The present case involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce brand-name drugs. These entities are the re spondents here. Contending that §4631(d) violates their 6 SORRELL v. IMS HEALTH INC. Opinion of the Court First Amendment rights as incorporated by the Four teenth Amendment, the respondents sought declaratory and injunctive relief against the petitioners, the Attorney General and other officials of the State of Vermont. After a bench trial, the United States District Court for the District of Vermont denied relief. 631 F. Supp. 2d 434 (2009). The District Court found that “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry” and that, because detailing unpatented generic drugs is not “cost-effective,” pharma ceutical sales representatives “detail only branded drugs.” Id., at 451, 442. As the District Court further con- cluded, “the Legislature’s determination that [prescriber identifying] data is an effective marketing tool that en ables detailers to increase sales of new drugs is supported in the record.” Id., at 451. The United States Court of Appeals for the Second Circuit reversed and remanded. It held that §4631(d) violates the First Amendment by bur dening the speech of pharmaceutical marketers and data miners without an adequate justification. 630 F.3d 263. Judge Livingston dissented. The decision of the Second Circuit is in conflict with de cisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health Inc. v. Mills, 616 F.3d 7 (CA1 2010) (Maine); Ayotte, supra (New Hamp- shire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 562 U. S. __ (2011). II The beginning point is the text of §4631(d). In the pro- ceedings below, Vermont stated that the first sentence of §4631(d) prohibits pharmacies and other regulated entities from selling or disseminating prescriber identifying information for marketing. The information, Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F.3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of §4631(d)—namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying infor mation for any purpose, subject to the statutory exceptions set out at §4631(e). See Tr. of Oral Arg. 19–20. It might be argued that the State’s newfound interpretation comes too late in the day. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002) (waiver); New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (judicial estoppel). The respondents, the District Court, and the Court of Appeals were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law. See Houston v. Hill, 482 U.S. 451, 467–468, and n. 17 (1987); Zwickler v. Koota, 389 U.S. 241, 252 (1967). In any event, §4631(d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of §4631(d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at §4631(e). Under that reading, pharmacies may sell the information to private or academic researchers, see §4631(e)(1), but not, for exam ple, to pharmaceutical marketers. There is no dispute as to the remainder of §4631(d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manu facturers and detailers from using the information for 8 SORRELL v. IMS HEALTH INC. Opinion of the Court marketing. The questions now are whether §4631(d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law. A 1 On its face, Vermont’s law enacts content- and speaker based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first for bids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” §4631(e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it ap pears that Vermont could supply academic organizations with prescriber-identifying information to use in counter ing the messages of brand-name pharmaceutical manufac turers and in promoting the prescription of generic drugs. But §4631(d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfa vored speakers. Any doubt that §4631(d) imposes an aimed, content Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detailers—and only detailers—from communi cating with physicians in an effective and informative manner. Cf. Edenfield v. Fane, 507 U.S. 761, 766 (1993) (explaining the “considerable value” of in-person solicita tion). Formal legislative findings accompanying §4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manu facturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitu tional,” a statute’s stated purposes may also be considered. United States v. O’Brien, 391 U.S. 367, 384 (1968). Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. No. 80, §1(3). The legislature designed §4631(d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Ver mont’s law “goes even beyond mere content discrimina tion, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 505 U.S. 377, 391 (1992). Given the legislature’s expressed statement of purpose, it is apparent that §4631(d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint. Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418 (1993) (applying height ened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id., at 10 SORRELL v. IMS HEALTH INC. Opinion of the Court 429 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills . . . . Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must sat isfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by cen soring its content. See Simon & Schuster, Inc. v. Mem- bers of N. Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (speaker-based financial burden). The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (explaining that “ ‘content-neutral’ speech regula tions” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impend ing demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no excep Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court tion. See Discovery Network, supra, at 429–430 (commer cial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives. 2 The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regula tion. It is true that restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent restrictions di rected at commerce or conduct from imposing inciden tal burdens on speech. That is why a ban on race-based hiring may require employers to remove “ ‘White Appli cants Only’ ” signs, Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 62 (2006); why “an ordinance against outdoor fires” might forbid “burning a flag,” R. A. V., supra, at 385; and why antitrust laws can prohibit “agreements in restraint of trade,” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). But §4631(d) imposes more than an incidental burden on protected expression. Both on its face and in its practi cal operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See supra, at 8–11. While the burdened speech results from an economic motive, so too does a great deal of vital ex pression. See Bigelow v. Virginia, 421 U.S. 809, 818 (1975); New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964); see also United States v. United Foods, Inc., 533 U.S. 405, 410–411 (2001) (applying “First Amendment scrutiny” where speech effects were not incidental and 12 SORRELL v. IMS HEALTH INC. Opinion of the Court noting that “those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particu lar speakers. The Constitution “does not enact Mr. Her bert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment. Vermont further argues that §4631(d) regulates not speech but simply access to information. Prescriber identifying information was generated in compliance with a legal mandate, the State argues, and so could be consid ered a kind of governmental information. This argument finds some support in Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (1999), where the Court held that a plaintiff could not raise a facial chal lenge to a content-based restriction on access to government- held information. Because no private party faced a threat of legal punishment, the Court characterized the law at issue as “nothing more than a governmental denial of access to information in its possession.” Id., at 40. Under those circumstances the special reasons for permit ting First Amendment plaintiffs to invoke the rights of others did not apply. Id., at 38–39. Having found that the plaintiff could not raise a facial challenge, the Court re manded for consideration of an as-applied challenge. Id., at 41. United Reporting is thus a case about the availabil ity of facial challenges. The Court did not rule on the merits of any First Amendment claim. United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not ad dressed, in United Reporting. Here, unlike in United Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court Reporting, we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” Id., at 40. The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “re straints on the way in which the information might be used” or disseminated. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984); see also Bartnicki v. Vopper, 532 U.S. 514, 527 (2001); Florida Star v. B. J. F., 491 U.S. 524 (1989); New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). In Seattle Times, this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true that the respondents here, unlike the newspaper in Seattle Times, do not themselves possess information whose disclosure has been curtailed. That information, however, is in the hands of pharmacies and other private entities. There is no question that the “threat of prosecu tion . . . hangs over their heads.” United Reporting, 528 U.S., at 41. For that reason United Reporting does not bar respondents’ facial challenge. United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempt[ed] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. Id., at 40. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invok ing the rights of others through a facial challenge. Here, by contrast, the respondents claim—with good reason— that §4631(d) burdens their own speech. That argument finds support in the separate writings in United Report ing, which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the 14 SORRELL v. IMS HEALTH INC. Opinion of the Court expression of potential recipients and so transgress the First Amendment. See id., at 42 (SCALIA, J., concurring) (suggesting that “a restriction upon access that allows access to the press . . . but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); id., at 43 (GINSBURG, J., concurring) (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); id., at 46 (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes a content- and speaker based burden on respondents’ own speech. That consid eration provides a separate basis for distinguishing United Reporting and requires heightened judicial scrutiny. The State also contends that heightened judicial scru tiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has charac terized prescriber-identifying information as a mere “com modity” with no greater entitlement to First Amend- ment protection than “beef jerky.” Ayotte, 550 F.3d, at 52–53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying informa tion is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F.3d, at 271–272 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and altera tion omitted)); 631 F. Supp. 2d, at 445 (“A restriction on Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court disclosure is a regulation of speech, and the ‘sale’ of [in formation] is simply disclosure for profit”). This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e.g., Bartnicki, supra, at 527 (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omit ted)); Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995) (“information on beer labels” is speech); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowl edge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes. The State asks for an exception to the rule that informa tion is speech, but there is no need to consider that re quest in this case. The State has imposed content- and speaker-based restrictions on the availability and use of prescriber-identifying information. So long as they do not engage in marketing, many speakers can obtain and use the information. But detailers cannot. Vermont’s statute could be compared with a law prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star, 460 U.S. 575. Like that hypothetical law, §4631(d) imposes a speaker- and content-based burden on protected expres sion, and that circumstance is sufficient to justify applica tion of heightened scrutiny. As a consequence, this case can be resolved even assuming, as the State argues, that prescriber-identifying information is a mere commodity. B In the ordinary case it is all but dispositive to conclude 16 SORRELL v. IMS HEALTH INC. Opinion of the Court that a law is content-based and, in practice, viewpoint discriminatory. See R. A. V., 505 U.S., at 382 (“Content based regulations are presumptively invalid”); id., at 391– 392. The State argues that a different analysis applies here because, assuming §4631(d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, e.g., Greater New Orleans Broad casting Assn., Inc. v. United States, 527 U.S. 173, 184 (1999). For the same reason there is no need to determine whether all speech hampered by §4631(d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 474 (1989) (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must . . . be classified as noncommercial”). Under a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. Thompson v. Western States Medi cal Center, 535 U.S. 357, 373 (2002). To sustain the targeted, content-based burden §4631(d) imposes on pro tected expression, the State must show at least that the statute directly advances a substantial governmental in terest and that the measure is drawn to achieve that interest. See Fox, supra, at 480–481; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557, 566 (1980). There must be a “fit between the legisla ture’s ends and the means chosen to accomplish those ends.” Fox, supra, at 480 (internal quotation marks omit ted). As in other contexts, these standards ensure not only that the State’s interests are proportional to the result- ing burdens placed on speech but also that the law does not seek to suppress a disfavored message. See Turner Broadcasting, 512 U.S., at 662–663. The State’s asserted justifications for §4631(d) come Cite as: 564 U. S. ____ (2011) 17 Opinion of the Court under two general headings. First, the State contends that its law is necessary to protect medical privacy, includ ing physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Sec ond, the State argues that §4631(d) is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny. 1 Vermont argues that its physicians have a “reasonable expectation” that their prescriber-identifying information “will not be used for purposes other than . . . filling and processing” prescriptions. See 2007 Vt. Laws No. 80, §1(29). It may be assumed that, for many reasons, physi cians have an interest in keeping their prescription deci sions confidential. But §4631(d) is not drawn to serve that interest. Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any rea son save one: They must not allow the information to be used for marketing. Exceptions further allow pharma cies to sell prescriber-identifying information for certain purposes, including “health care research.” §4631(e). And the measure permits insurers, researchers, journalists, the State itself, and others to use the information. See §4631(d); cf. App. 370–372; id., at 211. All but conceding that §4631(d) does not in itself advance confidentiality interests, the State suggests that other laws might impose separate bars on the disclosure of prescriber-identifying information. See Vt. Bd. of Pharmacy Admin. Rule 20.1. But the potential effectiveness of other measures cannot justify the distinctive set of prohibitions and sanctions imposed by §4631(d). Perhaps the State could have addressed physician confi dentiality through “a more coherent policy.” Greater New Orleans Broadcasting, supra, at 195; see also Discovery 18 SORRELL v. IMS HEALTH INC. Opinion of the Court Network, 507 U.S., at 428. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health In surance Portability and Accountability Act of 1996, 42 U.S. C. §1320d–2; 45 CFR pts. 160 and 164 (2010). A statute of that type would present quite a different case than the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissi ble uses, the State’s asserted interest in physician confi dentiality does not justify the burden that §4631(d) places on protected expression. The State points out that it allows doctors to forgo the advantages of §4631(d) by consenting to the sale, disclo sure, and use of their prescriber-identifying information. See §4631(c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See Rowan v. Post Office Dept., 397 U.S. 728 (1970); cf. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 72 (1983). But that principle is inapposite here. Vermont has given its doctors a contrived choice: Either consent, which will allow your prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow your information to be used by those speakers whose message the State supports. Section 4631(d) may offer a limited degree of privacy, but only on terms favorable to the speech the State prefers. Cf. Rowan, supra, at 734, 737, 739, n. 6 (sustaining a law that allowed private par ties to make “unfettered,” “unlimited,” and “unreviewable” choices regarding their own privacy). This is not to say Cite as: 564 U. S. ____ (2011) 19 Opinion of the Court that all privacy measures must avoid content-based rules. Here, however, the State has conditioned privacy on ac ceptance of a content-based rule that is not drawn to serve the State’s asserted interest. To obtain the limited privacy allowed by §4631(d), Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers. Respondents suggest that a further defect of §4631(d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save §4631(d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance legitimate interests or too broad to protect speech. As already explained, §4631(d) permits extensive use of prescriber-identifying information and so does not advance the State’s asserted interest in physician confidentiality. The limited range of available privacy options instead reflects the State’s impermissible purpose to burden disfavored speech. Vermont’s argument accord ingly fails, even if the availability and scope of private election might be relevant in other contexts, as when the statute’s design is unrelated to any purpose to advance a preferred message. The State also contends that §4631(d) protects doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80, §1(28). “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceuti cal sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and har assed.” §1(20). It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by 20 SORRELL v. IMS HEALTH INC. Opinion of the Court pharmaceutical marketers can sustain a broad content based rule like §4631(d). Many are those who must en dure speech they do not like, but that is a necessary cost of freedom. See Erznoznik v. Jacksonville, 422 U.S. 205, 210–211 (1975); Cohen v. California, 403 U.S. 15, 21 (1971). In any event the State offers no explanation why remedies other than content-based rules would be inade quate. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (opinion of Stevens, J.). Physicians can, and often do, simply decline to meet with detailers, includ ing detailers who use prescriber-identifying information. See, e.g., App. 180, 333–334. Doctors who wish to forgo detailing altogether are free to give “No Solicitation” or “No Detailing” instructions to their office managers or to receptionists at their places of work. Personal privacy even in one’s own home receives “ample protection” from the “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 168 (2002); see also Bolger, supra, at 72. A physi cian’s office is no more private and is entitled to no greater protection. Vermont argues that detailers’ use of prescriber identifying information undermines the doctor-patient relationship by allowing detailers to influence treatment decisions. According to the State, “unwanted pressure occurs” when doctors learn that their prescription deci sions are being “monitored” by detailers. 2007 Vt. Laws No. 80, §1(27). Some physicians accuse detailers of “spy ing” or of engaging in “underhanded” conduct in order to “subvert” prescription decisions. App. 336, 380, 407–408; see also id., at 326–328. And Vermont claims that detail ing makes people “anxious” about whether doctors have their patients’ best interests at heart. Id., at 327. But the State does not explain why detailers’ use of prescriber identifying information is more likely to prompt these Cite as: 564 U. S. ____ (2011) 21 Opinion of the Court objections than many other uses permitted by §4631(d). In any event, this asserted interest is contrary to basic First Amendment principles. Speech remains protected even when it may “stir people to action,” “move them to tears,” or “inflict great pain.” Snyder v. Phelps, 562 U. S. ___, ___ (2011) (slip op., at 15). The more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment. If pharmaceutical marketing affects treat ment decisions, it does so because doctors find it persua sive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). 2 The State contends that §4631(d) advances impor- tant public policy goals by lowering the costs of medical services and promoting public health. If prescriber identifying information were available for use by detailers, the State contends, then detailing would be effective in promoting brand-name drugs that are more expensive and less safe than generic alternatives. This logic is set out at length in the legislative findings accompanying §4631(d). Yet at oral argument here, the State declined to acknowl edge that §4631(d)’s objective purpose and practical effect were to inhibit detailing and alter doctors’ prescription decisions. See Tr. of Oral Arg. 5–6. The State’s reluctance to embrace its own legislature’s rationale reflects the vulnerability of its position. While Vermont’s stated policy goals may be proper, §4631(d) does not advance them in a permissible way. As the Court of Appeals noted, the “state’s own explanation of how” §4631(d) “advances its interests cannot be said to be direct.” 630 F.3d, at 277. The State seeks to achieve its policy objectives through the indirect means of restraining 22 SORRELL v. IMS HEALTH INC. Opinion of the Court certain speech by certain speakers—that is, by diminish ing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truth ful information” cannot justify content-based burdens on speech. Thompson, 535 U.S., at 374; see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 769–770 (1976). “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 Liquormart, supra, at 503 (opinion of Stevens, J.); see also Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 97 (1977). These pre cepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers. Edenfield, 507 U.S., at 775. As Vermont’s legislative findings acknowledge, the prem- ise of §4631(d) is that the force of speech can justify the government’s attempts to stifle it. Indeed the State defends the law by insisting that “pharmaceutical market ing has a strong influence on doctors’ prescribing prac tices.” Brief for Petitioners 49–50. This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading adver tisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers. The defect in Vermont’s law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view Cite as: 564 U. S. ____ (2011) 23 Opinion of the Court targeted detailing based on prescriber-identifying infor mation as “very helpful” because it allows detailers to shape their messages to each doctor’s practice. App. 274; see also id., at 181, 218, 271–272. Even the United States, which appeared here in support of Vermont, took care to dispute the State’s “unwarranted view that the dangers of [n]ew drugs outweigh their benefits to patients.” Brief for United States as Amicus Curiae 24, n. 4. There are di vergent views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.” App. 279. There are similar sayings in law, including that “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia Bd., 425 U.S., at 770. The choice “between the dangers of suppressing information, and the dangers of its misuse if it is freely available” is one that “the First Amendment makes for us.” Ibid. Vermont may be displeased that detailers who use prescriber-identifying information are effective in promot ing brand-name drugs. The State can express that view through its own speech. See Linmark, 431 U.S., at 97; cf. §4622(a)(1) (establishing a prescription drug educational program). But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction. “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not 24 SORRELL v. IMS HEALTH INC. Opinion of the Court the government, assess the value of the information pre sented.” Edenfield, supra, at 767. It is true that content-based restrictions on protected expression are sometimes permissible, and that principle applies to commercial speech. Indeed the government’s legitimate interest in protecting consumers from “commer cial harms” explains “why commercial speech can be sub ject to greater governmental regulation than noncommer cial speech.” Discovery Network, 507 U.S., at 426; see also 44 Liquormart, 517 U. S., 502 (opinion of Stevens, J.). The Court has noted, for example, that “a State may choose to regulate price advertising in one industry but not in oth ers, because the risk of fraud . . . is in its view greater there.” R. A. V., 505 U.S., at 388–389 (citing Virginia Bd., supra, at 771–772). Here, however, Vermont has not shown that its law has a neutral justification. The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents. See Thompson, 535 U.S., at 373. Nor does the State argue that the provision challenged here will prevent false or misleading speech. Cf. post, at 10–11 (BREYER, J., dissenting) (collecting regulations that the government might defend on this ground). The State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion. See Bolger, 463 U.S., at 69; Thompson, supra, at 376. * * * The capacity of technology to find and publish personal information, including records required by the govern ment, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate. If Vermont’s statute provided that prescriber-identifying Cite as: 564 U. S. ____ (2011) 25 Opinion of the Court information could not be sold or disclosed except in narrow circumstances then the State might have a stronger posi tion. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclos ing the information, while at the same time restricting the information’s use by some speakers and for some pur poses, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers. When it enacted §4631(d), the Vermont Legislature found that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand name companies invest in expensive pharmaceutical mar keting campaigns to doctors.” 2007 Vt. Laws No. 80, §1(4). “The goals of marketing programs,” the legislature said, “are often in conflict with the goals of the state.” §1(3). The text of §4631(d), associated legislative findings, and the record developed in the District Court establish that Vermont enacted its law for this end. The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unbur dened those speakers whose messages are in accord with its own views. This the State cannot do. The judgment of the Court of Appeals is affirmed. It is so ordered. Cite as: 564 U. S. ____ (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–779 _________________ WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT, ET AL., PETITIONERS v. IMS HEALTH INC. ET AL.

Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing pur poses, or used for marketing by pharmaceutical manufac turers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that market ing will lead to prescription decisions not in the best inter ests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard. I A Pharmaceutical manufacturers promote their drugs to 2 SORRELL v. IMS HEALTH INC. Opinion of the Court doctors through a process called “detailing.” This often in- volves a scheduled visit to a doctor’s office to persuade the doctor to prescribe a particular pharmaceutical. De tailers bring drug samples as well as medical studies that explain the “details” and potential advantages of var ious prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and pur chasing preferences of their clientele, and pharmaceutical salespersons are no exception. Knowledge of a physi- cian’s prescription practices—called “prescriber-identifying information”—enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug’s patent expires, less expensive bioequivalent generic alternatives are manufactured and sold. Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when proc essing prescriptions. See U.S. C. see also Vt. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their mar keting tactics and increase sales. In 2007, Vermont enacted the Prescription Confidential ity Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is (d). “A health insurer, a self-insured employer, an elec Cite as: 564 U. S. (2011) 3 Opinion of the Court tronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents Pharmaceu tical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents” The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insur ers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar enti- ties from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provi sion’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber identifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. (f). Separate statutory provisions elaborate the scope of the prohibitions set out in (d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescrip tion drug.” (b)(5). Section 4631(c)(1) further pro vides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying infor mation to be used for the purposes” identified in (d). 4 SORRELL v. IMS HEALTH INC. Opinion of the Court Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriber identifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies, or preferred drug lists; for “care management educational communications provided to” pa tients on such matters as “treatment options”; for law enforcement operations; and for purposes “otherwise pro vided by law.” (e). Act 80 also authorized funds for an “evidence-based pre scription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon ex pire. Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 1; see also IMS Health Inc. v. (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufac turers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may sup ply the prescriber-identifying information used in these programs. See App. 313; (“[W]e use the data given to us by the State of Pennsylvania to figure out which physicians to talk to”); see also 7–429 (Director of the Office of Vermont Health Access explain ing that the office collects prescriber-identifying informa tion but “does not at this point in time have a counter detailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative Cite as: 564 U. S. (2011) 5 Opinion of the Court treatment options. The Vermont Legislature, however, later repealed that provision. Vt. Laws No. 89, Act 80 was accompanied by legislative findings. Vt. Acts No. 80, Vermont found, for example, that the “goals of marketing programs are often in conflict with the goals of the state” and that the “marketplace for ideas on medi cine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceuti cal marketing campaigns to doctors.” (4). Detail ing, in the legislature’s view, caused doctors to make decisions based on “incomplete and biased information.” Because they “are unable to take the time to re search the quickly changing pharmaceutical market,” Vermont doctors “rely on information provided by phar maceutical representatives.” The legislature further found that detailing increases the cost of health care and health insurance, encourages hasty and excessive reliance on brand-name drugs, before the profes sion has observed their effectiveness as compared with older and less expensive generic alternatives, and fosters disruptive and repeated marketing visits tanta mount to harassment, The legislative find ings further noted that use of prescriber-identifying in formation “increase[s] the effect of detailing programs” by allowing detailers to target their visits to particular doctors. Use of prescriber-identifying data also helps detailers shape their messages by “tailoring” their “presentations to individual prescriber styles, preferences, and attitudes.” B The present case involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce brand-name drugs. These entities are the re spondents here. Contending that (d) violates their 6 SORRELL v. IMS HEALTH INC. Opinion of the Court First Amendment rights as incorporated by the Four teenth Amendment, the respondents sought declaratory and injunctive relief against the petitioners, the Attorney General and other officials of the State of Vermont. After a bench trial, the United States District Court for the District of Vermont denied relief. (2009). The District Court found that “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry” and that, because detailing unpatented generic drugs is not “cost-effective,” pharma ceutical sales representatives “detail only branded drugs.” As the District Court further con- cluded, “the Legislature’s determination that [prescriber identifying] data is an effective marketing tool that en ables detailers to increase sales of new drugs is supported in the record.” The United States Court of Appeals for the Second Circuit reversed and remanded. It held that (d) violates the First Amendment by bur dening the speech of pharmaceutical marketers and data miners without an adequate justification. Judge Livingston dissented. The decision of the Second Circuit is in conflict with de cisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health ; (New Hamp- shire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 5 U. S. (2011). II The beginning point is the text of (d). In the pro- ceedings below, Vermont stated that the first sentence of (d) prohibits pharmacies and other regulated entities from selling or disseminating prescriber identifying information for marketing. The information, Cite as: 564 U. S. (2011) 7 Opinion of the Court in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F.3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of (d)—namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying infor mation for any purpose, subject to the statutory exceptions set out at (e). See Tr. of Oral Arg. 19–20. It might be argued that the State’s newfound interpretation comes too late in the day. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (waiver); New Hampshire v. Maine, The respondents, the District Court, and the Court of Appeals were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law. See ; Zwickler v. Koota, In any event, (d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of (d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at (e). Under that reading, pharmacies may sell the information to private or academic researchers, see (e)(1), but not, for exam ple, to pharmaceutical marketers. There is no dispute as to the remainder of (d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manu facturers and detailers from using the information for 8 SORRELL v. IMS HEALTH INC. Opinion of the Court marketing. The questions now are whether (d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law. A 1 On its face, Vermont’s law enacts content- and speaker based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first for bids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” (e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it ap pears that Vermont could supply academic organizations with prescriber-identifying information to use in counter ing the messages of brand-name pharmaceutical manufac turers and in promoting the prescription of generic drugs. But (d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfa vored speakers. Any doubt that (d) imposes an aimed, content Cite as: 564 U. S. (2011) 9 Opinion of the Court based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, Vermont’s law thus has the effect of preventing detailers—and only detailers—from communi cating with physicians in an effective and informative manner. Cf. (explaining the “considerable value” of in-person solicita tion). Formal legislative findings accompanying (d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manu facturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitu tional,” a statute’s stated purposes may also be considered. United 3 U.S. 367, Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. No. 80, The legislature designed (d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Ver mont’s law “goes even beyond mere content discrimina tion, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 3 Given the legislature’s expressed statement of purpose, it is apparent that (d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint. Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See (applying height ened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); at 10 SORRELL v. IMS HEALTH INC. Opinion of the Court 429 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner System, (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must sat isfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by cen soring its content. See Simon & Schuster, 115 (19) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (speaker-based financial burden). The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” 4 U.S. 781, 7 ; see also (1986) (explaining that “ ‘content-neutral’ speech regula tions” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impend ing demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Commercial speech is no excep Cite as: 564 U. S. (2011) 11 Opinion of the Court tion. See Discovery 9–430 (commer cial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” That reality has great relevance in the fields of medicine and public health, where information can save lives. 2 The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regula tion. It is true that restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent restrictions di rected at commerce or conduct from imposing inciden tal burdens on speech. That is why a ban on race-based hiring may require employers to remove “ ‘White Appli cants Only’ ” signs, ; why “an ordinance against outdoor fires” might forbid “burning a flag,” R. A. V., ; and why antitrust laws can prohibit “agreements in restraint of trade,” Giboney v. Empire Storage & Ice Co., But (d) imposes more than an incidental burden on protected expression. Both on its face and in its practi cal operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See at 8–11. While the burdened speech results from an economic motive, so too does a great deal of vital ex pression. See (15); New York Times (1964); see also United States v. United Foods, Inc., 533 U.S. 405, 410–411 (applying “First Amendment scrutiny” where speech effects were not incidental and 12 SORRELL v. IMS HEALTH INC. Opinion of the Court noting that “those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particu lar speakers. The Constitution “does not enact Mr. Her bert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment. Vermont further argues that (d) regulates not speech but simply access to information. Prescriber identifying information was generated in compliance with a legal mandate, the State argues, and so could be consid ered a kind of governmental information. This argument finds some support in Los Angeles Police where the Court held that a plaintiff could not raise a facial chal lenge to a content-based restriction on access to government- held information. Because no private party faced a threat of legal punishment, the Court characterized the law at issue as “nothing more than a governmental denial of access to information in its possession.” Under those circumstances the special reasons for permit ting First Amendment plaintiffs to invoke the rights of others did not apply. at 38–39. Having found that the plaintiff could not raise a facial challenge, the Court re manded for consideration of an as-applied challenge. at 41. United Reporting is thus a case about the availabil ity of facial challenges. The Court did not rule on the merits of any First Amendment claim. United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not ad dressed, in United Reporting. Here, unlike in United Cite as: 564 U. S. (2011) 13 Opinion of the Court Reporting, we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “re straints on the way in which the information might be used” or disseminated. Seattle Times ; see also v. Vopper, 5 U.S. 514, 527 ; Florida Star v. B. J. F., 4 U.S. 524 ; New York Times Co. v. United States, 403 U.S. 713 (11) (per curiam). In Seattle Times, this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true that the respondents here, unlike the newspaper in Seattle Times, do not themselves possess information whose disclosure has been curtailed. That information, however, is in the hands of pharmacies and other private entities. There is no question that the “threat of prosecu tion hangs over their heads.” United Reporting, 528 U.S., at 41. For that reason United Reporting does not bar respondents’ facial challenge. United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempt[ed] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invok ing the rights of others through a facial challenge. Here, by contrast, the respondents claim—with good reason— that (d) burdens their own speech. That argument finds support in the separate writings in United Report ing, which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the 14 SORRELL v. IMS HEALTH INC. Opinion of the Court expression of potential recipients and so transgress the First Amendment. See (suggesting that “a restriction upon access that allows access to the press but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes a content- and speaker based burden on respondents’ own speech. That consid eration provides a separate basis for distinguishing United Reporting and requires heightened judicial scrutiny. The State also contends that heightened judicial scru tiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has charac terized prescriber-identifying information as a mere “com modity” with no greater entitlement to First Amend- ment protection than “beef jerky.” 550 F.3d, at 52–53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying informa tion is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F.3d, at 271–2 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and altera tion omitted)); (“A restriction on Cite as: 564 U. S. (2011) 15 Opinion of the Court disclosure is a regulation of speech, and the ‘sale’ of [in formation] is simply disclosure for profit”). This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e.g., (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omit ted)); 1 (1995) (“information on beer labels” is speech); Dun & Bradstreet, 4 U.S. 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowl edge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes. The State asks for an exception to the rule that informa tion is speech, but there is no need to consider that re quest in this case. The State has imposed content- and speaker-based restrictions on the availability and use of prescriber-identifying information. So long as they do not engage in marketing, many speakers can obtain and use the information. But detailers cannot. Vermont’s statute could be compared with a law prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star, 460 U.S. 575. Like that hypothetical law, (d) imposes a speaker- and content-based burden on protected expres sion, and that circumstance is sufficient to justify applica tion of heightened scrutiny. As a consequence, this case can be resolved even assuming, as the State argues, that prescriber-identifying information is a mere commodity. B In the ordinary case it is all but dispositive to conclude 16 SORRELL v. IMS HEALTH INC. Opinion of the Court that a law is content-based and, in practice, viewpoint discriminatory. See R. A. V., (“Content based regulations are presumptively invalid”); at 3– 392. The State argues that a different analysis applies here because, assuming (d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, e.g., Greater New Orleans Broad casting Assn., For the same reason there is no need to determine whether all speech hampered by (d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must be classified as noncommercial”). Under a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. To sustain the targeted, content-based burden (d) imposes on pro tected expression, the State must show at least that the statute directly advances a substantial governmental in terest and that the measure is drawn to achieve that interest. See at 0–1; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557, 566 (1980). There must be a “fit between the legisla ture’s ends and the means chosen to accomplish those ends.” at 0 (internal quotation marks omit ted). As in other contexts, these standards ensure not only that the State’s interests are proportional to the result- ing burdens placed on speech but also that the law does not seek to suppress a disfavored message. See Turner 512 U.S., at 6–663. The State’s asserted justifications for (d) come Cite as: 564 U. S. (2011) 17 Opinion of the Court under two general headings. First, the State contends that its law is necessary to protect medical privacy, includ ing physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Sec ond, the State argues that (d) is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny. 1 Vermont argues that its physicians have a “reasonable expectation” that their prescriber-identifying information “will not be used for purposes other than filling and processing” prescriptions. See 2007 Vt. Laws No. 80, It may be assumed that, for many reasons, physi cians have an interest in keeping their prescription deci sions confidential. But (d) is not drawn to serve that interest. Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any rea son save one: They must not allow the information to be used for marketing. Exceptions further allow pharma cies to sell prescriber-identifying information for certain purposes, including “health care research.” (e). And the measure permits insurers, researchers, journalists, the State itself, and others to use the information. See (d); cf. App. 370–3; All but conceding that (d) does not in itself advance confidentiality interests, the State suggests that other laws might impose separate bars on the disclosure of prescriber-identifying information. See Vt. of Pharmacy Admin. Rule 20.1. But the potential effectiveness of other measures cannot justify the distinctive set of prohibitions and sanctions imposed by (d). Perhaps the State could have addressed physician confi dentiality through “a more coherent policy.” Greater New Orleans ; see also Discovery 18 SORRELL v. IMS HEALTH INC. Opinion of the Court 507 U.S., 8. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health In surance Portability and Accountability Act of 1996, 42 U.S. C. §10d–2; 45 CFR pts. 160 and 164 A statute of that type would present quite a different case than the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissi ble uses, the State’s asserted interest in physician confi dentiality does not justify the burden that (d) places on protected expression. The State points out that it allows doctors to forgo the advantages of (d) by consenting to the sale, disclo sure, and use of their prescriber-identifying information. See (c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See v. Post Office Dept., ; cf. But that principle is inapposite here. Vermont has given its doctors a contrived choice: Either consent, which will allow your prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow your information to be used by those speakers whose message the State supports. Section 4631(d) may offer a limited degree of privacy, but only on terms favorable to the speech the State prefers. Cf. 737, 739, n. 6 (sustaining a law that allowed private par ties to make “unfettered,” “unlimited,” and “unreviewable” choices regarding their own privacy). This is not to say Cite as: 564 U. S. (2011) 19 Opinion of the Court that all privacy measures must avoid content-based rules. Here, however, the State has conditioned privacy on ac ceptance of a content-based rule that is not drawn to serve the State’s asserted interest. To obtain the limited privacy allowed by (d), Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers. Respondents suggest that a further defect of (d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save (d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance legitimate interests or too broad to protect speech. As already explained, (d) permits extensive use of prescriber-identifying information and so does not advance the State’s asserted interest in physician confidentiality. The limited range of available privacy options instead reflects the State’s impermissible purpose to burden disfavored speech. Vermont’s argument accord ingly fails, even if the availability and scope of private election might be relevant in other contexts, as when the statute’s design is unrelated to any purpose to advance a preferred message. The State also contends that (d) protects doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80, “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceuti cal sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and har assed.” It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by 20 SORRELL v. IMS HEALTH INC. Opinion of the Court pharmaceutical marketers can sustain a broad content based rule like (d). Many are those who must en dure speech they do not like, but that is a necessary cost of freedom. See 0–1 (15); (11). In any event the State offers no explanation why remedies other than content-based rules would be inade quate. See 44 Inc. v. Rhode Island, 517 U.S. 4, 503 (1996) (opinion of Stevens, J.). Physicians can, and often do, simply decline to meet with detailers, includ ing detailers who use prescriber-identifying information. See, e.g., App. 180, 333–334. Doctors who wish to forgo detailing altogether are free to give “No Solicitation” or “No Detailing” instructions to their office managers or to receptionists at their places of work. Personal privacy even in one’s own home receives “ample protection” from the “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 168 ; see also at A physi cian’s office is no more private and is entitled to no greater protection. Vermont argues that detailers’ use of prescriber identifying information undermines the doctor-patient relationship by allowing detailers to influence treatment decisions. According to the State, “unwanted pressure occurs” when doctors learn that their prescription deci sions are being “monitored” by detailers. 2007 Vt. Laws No. 80, Some physicians accuse detailers of “spy ing” or of engaging in “underhanded” conduct in order to “subvert” prescription decisions. App. 336, 380, 407–408; see also at 6–8. And Vermont claims that detail ing makes people “anxious” about whether doctors have their patients’ best interests at heart. at 7. But the State does not explain why detailers’ use of prescriber identifying information is more likely to prompt these Cite as: 564 U. S. (2011) Opinion of the Court objections than many other uses permitted by (d). In any event, this asserted interest is contrary to basic First Amendment principles. Speech remains protected even when it may “stir people to action,” “move them to tears,” or “inflict great pain.” Snyder v. Phelps, 5 U. S. (2011) (slip op., at 15). The more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment. If pharmaceutical marketing affects treat ment decisions, it does so because doctors find it persua sive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it. 447 (1969) (per curiam). 2 The State contends that (d) advances impor- tant public policy goals by lowering the costs of medical services and promoting public health. If prescriber identifying information were available for use by detailers, the State contends, then detailing would be effective in promoting brand-name drugs that are more expensive and less safe than generic alternatives. This logic is set out at length in the legislative findings accompanying (d). Yet at oral argument here, the State declined to acknowl edge that (d)’s objective purpose and practical effect were to inhibit detailing and alter doctors’ prescription decisions. See Tr. of Oral Arg. 5–6. The State’s reluctance to embrace its own legislature’s rationale reflects the vulnerability of its position. While Vermont’s stated policy goals may be proper, (d) does not advance them in a permissible way. As the Court of Appeals noted, the “state’s own explanation of how” (d) “advances its interests cannot be said to be direct.” The State seeks to achieve its policy objectives through the indirect means of restraining 22 SORRELL v. IMS HEALTH INC. Opinion of the Court certain speech by certain speakers—that is, by diminish ing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truth ful information” cannot justify content-based burdens on speech. U.S., at 374; see also Virginia of 425 U.S. 7, “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 at 503 (opinion of Stevens, J.); see also Associates, These pre cepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers. As Vermont’s legislative findings acknowledge, the prem- ise of (d) is that the force of speech can justify the government’s attempts to stifle it. Indeed the State defends the law by insisting that “pharmaceutical market ing has a strong influence on doctors’ prescribing prac tices.” Brief for Petitioners 49–50. This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading adver tisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers. The defect in Vermont’s law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view Cite as: 564 U. S. (2011) 23 Opinion of the Court targeted detailing based on prescriber-identifying infor mation as “very helpful” because it allows detailers to shape their messages to each doctor’s practice. App. 274; see also at 181, 8, 271–2. Even the United States, which appeared here in support of Vermont, took care to dispute the State’s “unwarranted view that the dangers of [n]ew drugs outweigh their benefits to patients.” Brief for United States as Amicus Curiae 24, n. 4. There are di vergent views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.” App. 279. There are similar sayings in law, including that “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia The choice “between the dangers of suppressing information, and the dangers of its misuse if it is freely available” is one that “the First Amendment makes for us.” Vermont may be displeased that detailers who use prescriber-identifying information are effective in promot ing brand-name drugs. The State can express that view through its own speech. See 431 U.S., at ; cf. §42(a)(1) (establishing a prescription drug educational program). But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction. “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not 24 SORRELL v. IMS HEALTH INC. Opinion of the Court the government, assess the value of the information pre sented.” It is true that content-based restrictions on protected expression are sometimes permissible, and that principle applies to commercial speech. Indeed the government’s legitimate interest in protecting consumers from “commer cial harms” explains “why commercial speech can be sub ject to greater governmental regulation than noncommer cial speech.” Discovery 507 U.S., 6; see also 44 517 U. S., (opinion of Stevens, J.). The Court has noted, for example, that “a State may choose to regulate price advertising in one industry but not in oth ers, because the risk of fraud is in its view greater there.” R. A. V., –389 (citing Virginia at 771–7). Here, however, Vermont has not shown that its law has a neutral justification. The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents. See U.S., at Nor does the State argue that the provision challenged here will prevent false or misleading speech. Cf. post, at 10–11 (BREYER, J., dissenting) (collecting regulations that the government might defend on this ground). The State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion. See ; * * * The capacity of technology to find and publish personal information, including records required by the govern ment, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate. If Vermont’s statute provided that prescriber-identifying Cite as: 564 U. S. (2011) 25 Opinion of the Court information could not be sold or disclosed except in narrow circumstances then the State might have a stronger posi tion. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclos ing the information, while at the same time restricting the information’s use by some speakers and for some pur poses, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers. When it enacted (d), the Vermont Legislature found that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand name companies invest in expensive pharmaceutical mar keting campaigns to doctors.” 2007 Vt. Laws No. 80, “The goals of marketing programs,” the legislature said, “are often in conflict with the goals of the state.” The text of (d), associated legislative findings, and the record developed in the District Court establish that Vermont enacted its law for this end. The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unbur dened those speakers whose messages are in accord with its own views. This the State cannot do. The judgment of the Court of Appeals is affirmed. It is so ordered. Cite as: 564 U. S. (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–779 WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT, ET AL., PETITIONERS v. IMS HEALTH INC. ET AL.

Justice Breyer

dissenting

Sorrell v. IMS Health Inc.

2011-06-23

https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/

https://www.courtlistener.com/api/rest/v3/clusters/219511/

The Vermont statute before us adversely affects expres sion in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional. I The Vermont statute before us says pharmacies and certain other entities “shall not [1] sell . . . regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records . . . for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, §4631(d) (Supp. 2010). 2 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting It also says that “[3] [p]harmaceutical manufacturers and pharmaceu tical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” Ibid. For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result. II In Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 (1997), this Court considered the First Amend ment’s application to federal agricultural commodity mar-keting regulations that required growers of fruit to make compulsory contributions to pay for collective adver tising. The Court reviewed the lawfulness of the regula tion’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regula tion.” Id., at 469. In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regu latory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in Glickman. The far stricter, specially “heightened” First Amendment standards that the major ity would apply to this instance of commercial regulation are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15. A Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifica tions differ depending upon context, this Court has distin guished for First Amendment purposes among different Cite as: 564 U. S. ____ (2011) 3 BREYER, J., dissenting contexts in which speech takes place. See, e.g., Snyder v. Phelps, 562 U. S. ___, ___–___ (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, e.g., “core” political speech, while imposing looser constraints when the gov ernment seeks to restrict, e.g., commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory pro gram. Compare Boos v. Barry, 485 U.S. 312, 321 (1988) (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557 (1980) (commercial speech), Pickering v. Board of Ed. of Town ship High School Dist. 205, Will Cty., 391 U.S. 563 (1968) (government employees), and Glickman, supra (economic regulation). These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); see Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will. At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (“We have always been careful to distinguish com mercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted. Thus this Court has recognized that commercial speech including advertising has an “informational function” and 4 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting is not “valueless in the marketplace of ideas.” Central Hudson, supra, at 563; Bigelow v. Virginia, 421 U.S. 809, 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Hudson, supra, at 564. Moreover, the Court has found that “sales practices” that are “misleading, decep tive, or aggressive” lack the protection of even this “inter mediate” standard. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (opinion of Stevens, J.); see also Central Hudson, supra, at 563; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455–456 (1978) (quoting Virginia Bd. of Pharmacy, supra, at 771, n. 24; emphasis added). The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See Glickman, supra, at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of Cite as: 564 U. S. ____ (2011) 5 BREYER, J., dissenting the remedy provided.” New State Ice Co. v. Liebmann, 285 U.S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla tive measure was a rational way to correct it”); United States v. Carolene Products Co., 304 U.S. 144, 152 (1938) (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”). To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes sage) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory pro grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat ening to distort or undermine legitimate legislative ob jectives. See Glickman, 521 U.S., at 476 (“Doubts con cerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they dis agree with does not “justify reliance on the First Amend ment as a basis for reviewing economic regulations”). Cf. Johanns v. Livestock Marketing Assn., 544 U.S. 550, 560– 562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Foods, Inc., 533 U.S. 405, 411 (2001) (applying greater scrutiny where compelled speech was not “ancil lary to a more comprehensive program restricting market ing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what 6 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting then-Justice Rehnquist, dissenting in Central Hudson, described as a “retur[n] to the bygone era of Lochner v. New York, 198 U.S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple ment its considered policies.” 447 U.S., at 589. B There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” Glickman, 521 U.S., at 469. For one thing, Ver mont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. id., at 469–470. (And I here assume that Central Hudson might otherwise apply. See Part III, infra.) For another thing, the same First Amendment stan dards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Gov ernment’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.) Further, the statute’s requirements form part of a tra ditional, comprehensive regulatory regime. Cf. United Foods, supra, at 411. The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, 34 Stat. 768. Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs Cite as: 564 U. S. ____ (2011) 7 BREYER, J., dissenting are both “safe” and “effective.” 21 U.S. C. §§355(b)(1), 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. §352(f)(2); 21 CFR pts. 201–203 (2010). Finally, Vermont’s statute is directed toward informa tion that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U.S. C. §353(b). Vermont regulates the qualifications, the fitness, and the practices of pharma cists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, §§2041(a), 2022(14) (Supp. 2010); Vt. Bd. of Pharmacy Admin. Rules (Pharmacy Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin). Regulators will often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new cus tomers. See 15 U.S. C. §1681b (2006 ed. and Supp. III); cf. Trans Union Corp. v. FTC, 245 F.3d 809, reh’g denied, 267 F.3d 1138 (CADC 2001). Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See 45 CFR §164.508(a)(3) (2010). Or, speaking hypo thetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid 8 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting sales of the data to appliance manufacturers seeking to sell gas stoves. Such regulatory actions are subject to judicial review, e.g., for compliance with applicable statutes. And they would normally be subject to review under the Adminis trative Procedure Act to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. §706(2)(A) (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional consti tutional concerns under the First Amendment. But cf. Trans Union LLC v. FTC, 536 U.S. 915 (2002) (KENNEDY, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothet ical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “inter mediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message). Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gath ered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Re porting Publishing Corp., 528 U.S. 32 (1999) (no height ened scrutiny); compare Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993) (“[C]ommercial speech can be subject to greater governmental regulation than non Cite as: 564 U. S. ____ (2011) 9 BREYER, J., dissenting commercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech). C The Court (suggesting a standard yet stricter than Central Hudson) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante, at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24. But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, e.g., Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972) (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable. Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of Pharmacy, 425 U.S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, . . . it must be dis tinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, e.g., Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institu tions. See 12 CFR pts. 226, 230 (2011). And the FDA 10 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regula tory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue). Nor, in the context of a regulatory program, is it un usual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manu facturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of indus trial equipment. See, e.g., 16 CFR pt. 305 (2011) (prescrib ing labeling requirements for certain home appliances); Nev. Admin. Code §§704.804, 704.808 (2010) (requiring utilities to provide consumers with information on conser vation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and ex cess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Or ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see 36 Fed. Reg. 12058 (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential pur chasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to Cite as: 564 U. S. ____ (2011) 11 BREYER, J., dissenting tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 350–351 (2001) (discussing effect of similar regulations in respect to medical devices); see also Pro posed Rule, Revised Effectiveness Determination; Sun screen Drug Products for Over-the-Counter Human Use, 76 Fed. Reg. 35672 (2011) (proposing to prohibit market ing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”). If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interfer ence with widely accepted regulatory activity. Cf., e.g., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect cer tain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines. The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manu facturers. Ante, at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, e.g., Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, e.g., Exec. Order No. 12866, 58 Fed. Reg. 51735 (1993) (specifying how to identify regulatory priorities and requiring agen cies to prepare agendas). The related statutes, regula tions, programs, and initiatives almost always reflect a 12 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting point of view, for example, of the Congress and the ad ministration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Gov ernment and the firms may disagree. Section 2 of the Sherman Act, 15 U.S. C. §2, for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists. In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often in volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk. Moreover, given the sheer quantity of regulatory initia tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu tionalization of economic theories preferred by individual jurists. See Lochner v. New York, 198 U.S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Cen tral Hudson, 447 U.S., at 589 (Rehnquist, J., dissenting); cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co., Cite as: 564 U. S. ____ (2011) 13 BREYER, J., dissenting 310 U.S. 573, 580–581 (1940) (“A controversy like this always calls for fresh reminder that courts must not sub stitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”). Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point. This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. §706(2)(A). And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would signifi cantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case. III Turning to the constitutional merits, I believe Vermont’s statute survives application of Central Hudson’s “interme diate” commercial speech standard as well as any more limited “economic regulation” test. 14 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting A The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjus tified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record con tains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. Burson v. Freeman, 504 U.S. 191, 207 (1992) (plurality opinion) (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977) (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”). The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Pharmacy Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthor ized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) (emphasis added); see also Reply Brief for Petition ers 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, §4631(e)(1) (pharmacy reimbursement, patient care management, health care research); §4631(e)(2) (drug dispensing); §4631(e)(3) (communications between pre scriber and pharmacy); §4631(e)(4) (information to pa Cite as: 564 U. S. ____ (2011) 15 BREYER, J., dissenting tients); §§4631(e)(5)–(6) (as otherwise provided by state or federal law). Cf. Trans Union Corp., 245 F.3d, at 819 (rejecting an underinclusiveness challenge because an exception to the Fair Credit Reporting Act concerned “ ‘exactly the sort of thing the Act seeks to promote’ ” (quot ing Trans Union Corp. v. FTC, 81 F.3d 228, 234 (CADC 1996)). Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speak ers.” Ante, at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creat ing individualized messages that would help them sell their drugs more effectively, but (2) permits “counterde tailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this con sequence would significantly increase the statute’s nega tive impact upon commercial speech. But cf. 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii) (FDA’s “fair balance” require ment); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont. The majority points out, ante, at 4, that Act 80, of which §4631 was a part, also created an “evidence-based pre scription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescrip tion drugs” to health professionals responsible for pre scribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, §4622(a)(1). See generally §§4621–4622. But that program does not make use of prescriber-identifying data. 16 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Reply Brief for Petitioners 11. The majority cites testimony by two witnesses in sup port of its statement that “States themselves may supply the prescriber-identifying information used in [counterde tailing] programs.” Ante, at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. Id., at 313. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter net materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort. The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The with holding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. Cite as: 564 U. S. ____ (2011) 17 BREYER, J., dissenting B The legitimate state interests that the statute serves are “substantial.” Central Hudson, 447 U.S., at 564. Ver mont enacted its statute “to advance the state’s interest in protecting the pub lic health of Vermonters, protecting the privacy of prescribers and prescribing information, and to en sure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” §4631(a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 24. The protection of public health falls within the tradi tional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U.S., at 501 (opinion of Stevens, J.); Central Hudson, supra, at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762–771 (1989); see also Solove, A Taxonomy of Pri 18 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy, 154 U. Pa. L. Rev. 477, 520–522 (2006); cf. NASA v. Nelson, 562 U. S. ___, ___–___ (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure). At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have every thing to do with general information that drug manufac turers likely possess. They have little, if anything, to do with the name or prior prescription practices of the par ticular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by divert ing attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests. Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to high light information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, id., at A–4235 (one for mer detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/health care-eli-lilly-pfizer-ama); Testimony of Paul Harrington Cite as: 564 U. S. ____ (2011) 19 BREYER, J., dissenting (May 3, 2007), id., at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), id., at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, id., at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); id., at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence). These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Ver mont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). No one has yet sug gested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently? The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, e.g., Pharmacy Rule 8.7(c) (“Prescription and other patient health care infor mation shall be secure from access by the public, and the information shall be kept confidential”); Pharmacy Rule 20 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting 20.1(i) (forbidding disclosure of patient or prescriber in formation to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, e.g., ibid. (identifying “authorized persons”); Vt. Stat. Ann., Tit. 18, §4631(e); App. 248, 255 (indicating that prescriber identifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See supra, at 15. Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confi dential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §§4631(c)–(d). For purposes of Central Hudson, this would seem sufficiently to show that the statute serves a mean ingful interest in increasing the protection given to pre scriber privacy. See Fox, 492 U.S., at 480 (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United States v. Edge Broadcast ing Co., 509 U.S. 418, 434 (1993) (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); Burson, 504 U.S., at 207 (plurality opinion). C The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central Hudson, 447 U.S., at 564. It says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 20. This fact, while true, is beside the point. Closing the Cite as: 564 U. S. ____ (2011) 21 BREYER, J., dissenting office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative ad vantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physi cians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbal anced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceuti cal Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharma ceutical Sales Representatives, 273 JAMA 1296 (1995). Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health. The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 24–25; see also ante, at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See supra, at 14. Compare Vt. Stat. Ann., Tit. 18, §4631(e) with note following 42 U.S. C. §1320d–2, p. 1190, and 45 CFR §164.512 (uses and disclosures not requiring consent under the Health Insurance Portability and Accountability Act of 1996). Regardless, this alterna tive is not “a more limited restriction,” Central Hudson, supra, at 564 (emphasis added), for it would impose a greater, not a lesser, burden upon the dissemination of information. Respondents’ alternatives are no more helpful. Respon dents suggest that “Vermont can simply inform physicians that pharmaceutical companies . . . use prescription his tory information to communicate with doctors.” Brief for 22 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997) (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educat ing doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, e.g., Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy. Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central Hudson, this statute is constitutional. IV What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable informa tion for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, §4631(d) (emphasis added). In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a de Cite as: 564 U. S. ____ (2011) 23 BREYER, J., dissenting claratory judgment and injunction prohibiting the en forcement of this statute. See 28 U.S. C. §2201; App. 49– 128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–241 (1937)) (Article III does not permit courts to entertain such disputes). The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unneces sarily high drug costs, and protect the privacy of prescrib ing physicians. There is no obvious equally effective, more limited alternative. V In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restric tions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, 24 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting and entirely commercial. See supra, at 6–9. The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See supra, at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra, at 7–8, 9–11. At worst, it re awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central Hudson, 447 U.S., at 589 (Rehnquist, J., dissenting). Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent

The Vermont statute before us adversely affects expres sion in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional. I The Vermont statute before us says pharmacies and certain other entities “shall not [1] sell regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, (Supp. 2010). 2 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting It also says that “[3] [p]harmaceutical manufacturers and pharmaceu tical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result. II In v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 this Court considered the First Amend ment’s application to federal agricultural commodity mar-keting regulations that required growers of fruit to make compulsory contributions to pay for collective adver tising. The Court reviewed the lawfulness of the regula tion’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regula tion.” In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regu latory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in The far stricter, specially “heightened” First Amendment standards that the major ity would apply to this instance of commercial regulation are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15. A Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifica tions differ depending upon context, this Court has distin guished for First Amendment purposes among different Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting contexts in which speech takes place. See, Snyder v. Phelps, 562 U. S. – (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, “core” political speech, while imposing looser constraints when the gov ernment seeks to restrict, commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory pro gram. Compare (political speech), with Central Gas & Elec. v. Public Serv. Comm’n of N. Y., (commercial speech), (government employees), and (economic regulation). These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting ; see (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will. At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida (“We have always been careful to distinguish com mercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted. Thus this Court has recognized that commercial speech including advertising has an “informational function” and 4 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting is not “valueless in the marketplace of ideas.” Central ; 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Moreover, the Court has found that “sales practices” that are “misleading, decep tive, or aggressive” lack the protection of even this “inter mediate” standard. 44 Liquormart, ; see also Central ; Virginia Bd. of v. Virginia Citizens Consumer Council, Inc., 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” (quoting Virginia Bd. of ; emphasis added). The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting the remedy provided.” New State Ice Co. v. Liebmann, 285 U.S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla tive measure was a rational way to correct it”); United States v. Carolene Products Co., (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”). To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes sage) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory pro grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat ening to distort or undermine legitimate legislative ob jectives. See (“Doubts con cerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they dis agree with does not “justify reliance on the First Amend ment as a basis for reviewing economic regulations”). Cf. 560– 562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Inc., (applying greater scrutiny where compelled speech was not “ancil lary to a more comprehensive program restricting market ing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what 6 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting then-Justice Rehnquist, dissenting in Central described as a “retur[n] to the bygone era of in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple ment its considered policies.” B There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” 521 U.S., For one thing, Ver mont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. –470. (And I here assume that Central might otherwise apply. See Part III, infra.) For another thing, the same First Amendment stan dards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Gov ernment’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.) Further, the statute’s requirements form part of a tra ditional, comprehensive regulatory regime. Cf. United at The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting are both “safe” and “effective.” 21 U.S. C. 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. 21 CFR pts. 201–203 (2010). Finally, Vermont’s statute is directed toward informa tion that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U.S. C. Vermont regulates the qualifications, the fitness, and the practices of pharma cists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, 2022(14) (Supp. 2010); Vt. Bd. of Admin. Rules ( Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin). Regulators will often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new cus tomers. See 15 U.S. C. (2006 ed. and Supp. III); cf. Trans Union reh’g denied, Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See (a)(3) (2010). Or, speaking hypo thetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid 8 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting sales of the data to appliance manufacturers seeking to sell gas stoves. Such regulatory actions are subject to judicial review, for compliance with applicable statutes. And they would normally be subject to review under the Adminis trative Procedure Act to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional consti tutional concerns under the First Amendment. But cf. Trans Union (KENNEDY, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothet ical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “inter mediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message). Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gath ered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Re porting Publishing (no height ened scrutiny); compare (“[C]ommercial speech can be subject to greater governmental regulation than non Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting commercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech). C The Court (suggesting a standard yet stricter than Central ) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante, at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24. But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable. Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of 425 U.S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, it must be dis tinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institu tions. See 12 CFR pts. 226, 230 (2011). And the FDA 10 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regula tory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. 492 U.S. 469, 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue). Nor, in the context of a regulatory program, is it un usual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manu facturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of indus trial equipment. See, 16 CFR pt. 305 (2011) (prescrib ing labeling requirements for certain home appliances); 704.808 (2010) (requiring utilities to provide consumers with information on conser vation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and ex cess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Or ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential pur chasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to Cite as: 564 U. S. (2011) 11 BREYER, J., dissenting tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman (discussing effect of similar regulations in respect to medical devices); see also Pro posed Rule, Revised Effectiveness Determination; Sun screen Drug Products for Over-the-Counter Human Use, (2011) (proposing to prohibit market ing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”). If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interfer ence with widely accepted regulatory activity. Cf., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect cer tain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines. The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manu facturers. Ante, at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, Exec. Order No. 12866, (specifying how to identify regulatory priorities and requiring agen cies to prepare agendas). The related statutes, regula tions, programs, and initiatives almost always reflect a 12 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting point of view, for example, of the Congress and the ad ministration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Gov ernment and the firms may disagree. Section 2 of the Sherman Act, 15 U.S. C. for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists. In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often in volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk. Moreover, given the sheer quantity of regulatory initia tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu tionalization of economic theories preferred by individual jurists. See 75–76 (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Cen tral ; cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co., Cite as: 564 U. S. (2011) 13 BREYER, J., dissenting (“A controversy like this always calls for fresh reminder that courts must not sub stitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”). Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point. This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would signifi cantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case. III Turning to the constitutional merits, I believe Vermont’s statute survives application of Central ’s “interme diate” commercial speech standard as well as any more limited “economic regulation” test. 14 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting A The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjus tified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record con tains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. v. Freeman, (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”). The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthor ized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) ; see also Reply Brief for Petition ers 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, (pharmacy reimbursement, patient care management, health care research); (drug dispensing); (communications between pre scriber and pharmacy); (information to pa Cite as: 564 U. S. (2011) 15 BREYER, J., dissenting tients); (as otherwise provided by state or federal law). Cf. Trans Union ). Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speak ers.” Ante, at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creat ing individualized messages that would help them sell their drugs more effectively, but (2) permits “counterde tailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this con sequence would significantly increase the statute’s nega tive impact upon commercial speech. But cf. 21 CFR 202.1(e)(5)(ii) (FDA’s “fair balance” require ment); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont. The majority points out, ante, at 4, that Act 80, of which was a part, also created an “evidence-based pre scription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescrip tion drugs” to health professionals responsible for pre scribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, See generally But that program does not make use of prescriber-identifying data. 16 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Reply Brief for Petitioners 11. The majority cites testimony by two witnesses in sup port of its statement that “States themselves may supply the prescriber-identifying information used in [counterde tailing] programs.” Ante, at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter net materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort. The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The with holding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. Cite as: 564 U. S. (2011) 17 BREYER, J., dissenting B The legitimate state interests that the statute serves are “substantial.” Central 447 U.S., Ver mont enacted its statute “to advance the state’s interest in protecting the pub lic health of Vermonters, protecting the privacy of prescribers and prescribing information, and to en sure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” (a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 24. The protection of public health falls within the tradi tional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U.S., at ; Central at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762–771 (1989); see also Solove, A Taxonomy of Pri 18 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy, 520–522 (2006); cf. NASA v. Nelson, 562 U. S. – (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure). At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have every thing to do with general information that drug manufac turers likely possess. They have little, if anything, to do with the name or prior prescription practices of the par ticular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by divert ing attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests. Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to high light information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, at A–4235 (one for mer detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/health care-eli-lilly-pfizer-ama); Testimony of Paul Harrington Cite as: 564 U. S. (2011) 19 BREYER, J., dissenting (May 3, 2007), at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence). These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Ver mont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR 202.1(e)(5)(ii). No one has yet sug gested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently? The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, Rule 8.7(c) (“Prescription and other patient health care infor mation shall be secure from access by the public, and the information shall be kept confidential”); Rule 20 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting 20.1(i) (forbidding disclosure of patient or prescriber in formation to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, ; Vt. Stat. Ann., Tit. 18, (e); App. 248, 255 (indicating that prescriber identifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confi dential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §(c)–(d). For purposes of Central this would seem sufficiently to show that the statute serves a mean ingful interest in increasing the protection given to pre scriber privacy. See (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); 504 U.S., at C The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central 447 U.S., It says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 20. This fact, while true, is beside the point. Closing the Cite as: 564 U. S. (2011) 21 BREYER, J., dissenting office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative ad vantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physi cians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbal anced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceuti cal Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharma ceutical Sales Representatives, Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health. The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 24–25; see also ante, at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See Compare Vt. Stat. Ann., Tit. 18, (e) with note following 42 U.S. C. p. 1190, and Regardless, this alterna tive is not “a more limited restriction,” Central for it would impose a greater, not a lesser, burden upon the dissemination of information. Respondents’ alternatives are no more helpful. Respon dents suggest that “Vermont can simply inform physicians that pharmaceutical companies use prescription his tory information to communicate with doctors.” Brief for 22 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educat ing doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy. Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central this statute is constitutional. IV What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable informa tion for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a de Cite as: 564 U. S. (2011) 23 BREYER, J., dissenting claratory judgment and injunction prohibiting the en forcement of this statute. See 28 U.S. C. App. 49– 128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, (2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–241 (1937)) (Article III does not permit courts to entertain such disputes). The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unneces sarily high drug costs, and protect the privacy of prescrib ing physicians. There is no obvious equally effective, more limited alternative. V In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restric tions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, 24 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting and entirely commercial. See at 6–9. The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, at 7–8, 9–11. At worst, it re awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central 447 U.S., at 589 Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent

Justice Sotomayor

dissenting

Barton v. Barr

2020-04-23

https://www.courtlistener.com/opinion/4748672/barton-v-barr/

https://www.courtlistener.com/api/rest/v3/clusters/4748672/

The stop-time rule ends a noncitizen’s period of continu- ous residence, making him or her ineligible for certain relief from removal. But to trigger the rule, it takes more than commission of a specified criminal offense: The offense must also render a noncitizen either “inadmissible” or “de- portable.” In applying these important limitations, the rule directly references the two-track nature of the Immigration and Nationality Act (INA), a statute that has long distin- guished between noncitizens seeking admission and those already admitted. Inadmissibility, of course, pertains to noncitizens seeking admission; deportability relates to noncitizens already admitted but removable. The majority errs by conflating these two terms. It con- cludes that the term “inadmissible,” for the purposes of the stop-time rule, refers to a status that a noncitizen could ac- quire even if he or she is not seeking admission. Under this logic, petitioner Andre Barton is inadmissible yet, at the same time, lawfully admitted. Neither the express lan- guage of the statute nor any interpretative canons support this paradox; Barton cannot and should not be considered inadmissible for purposes of the stop-time rule because he has already been admitted to the country. Thus, for the 2 BARTON v. BARR SOTOMAYOR, J., dissenting stop-time rule to render Barton ineligible for relief from re- moval, the Government must show that he committed an offense that made him deportable. Because the Govern- ment cannot meet that burden, Barton should prevail. I respectfully dissent. I A Cancellation of removal is a form of immigration relief available to lawful permanent residents (LPRs) and other noncitizens, including those who have never been lawfully admitted. 8 U.S. C. §1229b. To obtain this relief, both groups must continuously reside in the United States for a certain amount of time. §1229b(a)(2) (seven years for LPRs); §1229b(b)(1)(A) (10 years for non-LPR noncitizens). The stop-time rule ends a noncitizen’s period of continu- ous residence (1) when the noncitizen “has committed an offense referred to in section 1182(a)(2) of this title” that either (2) “renders” the noncitizen “inadmissible to the United States under section 1182(a)(2) of this title” or (3) renders the noncitizen “removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” §1229b(d)(1). The second clause directly invokes grounds of inadmissibility; the third clause, although using the term “removable,” directly invokes grounds of deportability. See §1227(a) (specifying “[c]lasses of deportable aliens”).1 Both the second and the third clauses are cabined by the first: In addition to rendering a noncitizen either inadmissible or deportable, the offense must also be one “referred to” in §1182(a)(2). That provision includes some—but not all—of the grounds of deportability in §1227. This distinction between “inadmissible” and “deportable” matters. Indeed, both are terms of art, so it is critical to —————— 1 Because the third clause refers to grounds of deportability, the Gov- ernment appears to agree that the terms “removable” and “deportable” are interchangeable. See Brief for Respondent 21–22. Cite as: 590 U. S. ____ (2020) 3 SOTOMAYOR, J., dissenting understand their histories and their attached meaning over time. See INS v. St. Cyr, 533 U.S. 289, 312 n. 35 (2001) (noting that “ ‘[w]here Congress borrows terms of art,’ ” with settled meaning, it “ ‘presumably knows and adopts the cluster of ideas that were attached to each borrowed word’ ” (quoting Morissette v. United States, 342 U.S. 246, 263 (1952))). Until Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), noncit- izens seeking physical entry were placed in “ ‘exclusion pro- ceeding[s],’ ” while those already physically present were placed in “ ‘deportation proceeding[s].’ ” Judulang v. Holder, 565 U.S. 42, 45 (2011). Although the grounds for exclusion and deportation—and the procedures applying to each—evolved over time, the immigration laws retained a two-track system; different procedures and processes ap- plied to noncitizens who were deportable and noncitizens who were excludable. Brief for Immigration Law Professors as Amici Curiae 3–8. IIRIRA changed the proceedings and some of the lan- guage. All noncitizens are now channeled into “ ‘removal proceeding[s],’ ” and noncitizens previously labeled “exclud- able” are now labeled “ ‘inadmissible.’ ” Judulang, 565 U.S., at 46. IIRIRA also altered when a noncitizen faces grounds of inadmissibility, formerly exclusion: Rather than focusing on whether a noncitizen had physically entered the country, the statute now asks whether the noncitizen had been lawfully admitted, in any status, to the country. See §§1101(a)(13)(A), 1182(a). Still, the immigration laws have retained their two-track structure. Inadmissibility and deportability remain sepa- rate concepts, triggered by different grounds. With few ex- ceptions, the grounds for inadmissibility are broader than those for deportability. Compare §1182(a)(2)(A)(i)(I) with §1227(a)(2)(A)(i) (reflecting different treatment for crimes involving moral turpitude). Further, while a noncitizen 4 BARTON v. BARR SOTOMAYOR, J., dissenting charged with inadmissibility bears the ultimate burden to show that he is admissible, the Government bears the bur- den of demonstrating that a noncitizen is deportable. §§1229a(c)(2), (c)(3). Whether a noncitizen is charged with inadmissibility or deportability also affects what the noncitizen or the Gov- ernment must show to carry their respective burdens. A criminal ground for inadmissibility can be made out by showing either that the noncitizen admitted to conduct meeting the elements of a crime or that she was actually convicted of an offense. See, e.g., Pazcoguin v. Radcliffe, 292 F.3d 1209, 1213–1215 (CA9 2002) (noncitizen inadmis- sible because he admitted to health officer that he smoked marijuana in his youth); see also §1182(a)(2)(A). By con- trast, most criminal grounds for deportability can be estab- lished only through convictions. See §§1227(a)(2)(A)(i)–(v), (a)(2)(B)(i). Finally, the substantive standards for cancellation of re- moval are also less stringent for a subset of deportable noncitizens: LPRs like Barton. Among other things, while an otherwise-eligible LPR must merely demonstrate that he or she deserves the relief as a matter of discretion, see In re C-V-T-, 22 I. & N. Dec. 7, 10–11 (BIA 1998), non-LPRs must demonstrate exceptional and extremely unusual hardship to an LPR or citizen parent, spouse, or child, §1229b(b)(1)(D). These separate categories and procedures—treating de- portable noncitizens more generously than inadmissible noncitizens, and treating one group of deportable nonciti- zens (LPRs) the most generously of all—stem from one an- imating principle. All noncitizens in this country are enti- tled to certain rights and protections, but the protections afforded to previously admitted noncitizens and LPRs are particularly strong. See Demore v. Kim, 538 U.S. 510, 543– 544 (2003) (Souter, J., concurring in part and dissenting in Cite as: 590 U. S. ____ (2020) 5 SOTOMAYOR, J., dissenting part). Indeed, “[t]he immigration laws give LPRs the op- portunity to establish a life permanently in this country by developing economic, familial, and social ties indistinguish- able from those of a citizen.” Id., at 544. Because those already admitted, like Barton, are often presumed to have greater connections to the country, the immigration laws use separate terms and create separate procedures for noncitizens seeking admission to the country on the one hand, and those who were previously admitted on the other. The stop-time rule carries that distinction forward. The rule specifies how a period of continuous residence ends for noncitizens who are seeking admission and thus are inad- missible, as well as noncitizens who are already admitted and thus are deportable. By using separate terms and grounds for two groups of people, the stop-time rule thus reflects the two-track dichotomy for inadmissible or deport- able noncitizens that pervades the INA. B Barton is a longtime lawfully admitted resident of the United States. He and his mother moved to the United States from Jamaica when he was about 10 years old. They both entered legally and, through Barton’s stepfather, soon adjusted their status to LPRs. When Barton was placed in removal proceedings, all of his immediate family—his mother, his children, his fiancee—were living in the United States. He had not returned to Jamaica in 25 years. Barton was first arrested in 1996, when he was 17 or 18, after a friend shot at his ex-girlfriend’s house while he was present. Both he and his friend were convicted of, among other things, aggravated assault and possession of a fire- arm. Barton later testified before an immigration judge that he was unaware that his friend had a gun or was plan- ning to shoot it. After attending a boot camp and obtaining his GED, Bar- ton led a law-abiding life for several years. But in the mid- 6 BARTON v. BARR SOTOMAYOR, J., dissenting 2000s, Barton developed a drug problem and was convicted twice on possession charges. After attending two drug re- habilitation programs, Barton was never arrested again. He graduated from college, began running an automobile repair shop, and became a father to four young children. Just a few years ago—nearly 10 years after his last ar- rest—the Government detained Barton and placed him in removal proceedings. Because he had been lawfully admit- ted to the country, the Government could not charge him with any grounds of inadmissibility. Rather, the Govern- ment charged, and Barton conceded, that he was deportable based on prior firearms and drug convictions. (All agree that Barton’s aggravated-assault offense did not qualify as a deportable offense under §1227.) Barton then sought can- cellation of removal. Perhaps recognizing that Barton had a strong case for cancellation of removal on the merits, see C-V-T-, 22 I. & N. Dec., at 11 (factors such as “family ties within the United States, residence of long duration in this country (particu- larly when the inception of residence occurred at a young age),” and “business ties” all favor a noncitizen seeking can- cellation), the Government contended that Barton was cat- egorically ineligible for that relief. It reasoned that Bar- ton’s prior offenses triggered the stop-time rule and that Barton therefore could not meet the continuous-residence requirement. The problem (for the Government) was finding a prior of- fense that actually triggered the stop-time rule. None of the offenses that had made Barton deportable—his firearms and drug convictions—satisfied the stop-time rule’s first clause because §1182(a)(2) does not “refe[r] to” those of- fenses. The Government therefore could not argue that Barton’s firearms and drug offenses ended Barton’s period of continuous residence under the stop-time rule. As for Barton’s aggravated-assault offense, it was not a ground for deportability under §1227(a) and therefore did not render Cite as: 590 U. S. ____ (2020) 7 SOTOMAYOR, J., dissenting him deportable under the third clause of the stop-time rule. So the Government took a different tack: It argued that, even though Barton had already been admitted (and was not seeking readmission), his aggravated-assault offense “render[ed him] inadmissible” under the second clause of the stop-time rule. That is, although the Government could not charge Barton with inadmissibility, it relied upon a ground of inadmissibility to assert that Barton was not en- titled to relief from removal. The Immigration Judge agreed with the Government. The judge made clear, however, that she would have granted Barton’s cancellation application had he satisfied the continuous-residence requirement. The judge cited, among other things, Barton’s strong family ties, including his four young children who were all U. S. citizens. The judge concluded that because “his last arrest was over 10 years ago,” Barton “is clearly rehabilitated.” The judge also concluded that Barton’s family “relies on him and would suffer hardship if he were to be deported to Jamaica.” App. to Pet. for Cert. 36a. II Barton makes two arguments to this Court. The Court focuses on the first—that the stop-time rule will “rende[r]” a noncitizen inadmissible only if the person is actually ad- judicated inadmissible based on the given offense. But whether Barton is right on that score is irrelevant because Barton’s second argument—which the Court fails to grap- ple with meaningfully—is surely correct: At the very least, an offense cannot “rende[r]” someone inadmissible unless the Government can legally charge that noncitizen with a ground of inadmissibility. That is, the stop-time rule is con- sistent with basic immigration law: A noncitizen who has already been admitted, and is not seeking readmission, can- not be charged with any ground of inadmissibility and thus cannot be deemed inadmissible. 8 BARTON v. BARR SOTOMAYOR, J., dissenting Because the stop-time rule uses the terms “removable” (i.e., deportable) and “inadmissible” in the disjunctive, the Court must analyze the rule against the INA’s historic two- track backdrop. That context confirms that the term “inad- missible” cannot refer to a noncitizen who, like Barton, has already been admitted and is not seeking readmission. In- deed, the terms “inadmissible” and “deportable” are mutu- ally exclusive in removal proceedings: A noncitizen can be deemed either inadmissible or deportable, not both. §1229a(e) (for the purposes of removal statute and §1229b—governing cancellation of removal—a noncitizen is “inadmissible under section 1182” if “not admitted to the United States,” and “deportable under section 1227” if “ad- mitted to the United States”). For the purposes of the stop- time rule, a person is not “inadmissible” unless that person actually seeks admission, and thus is subject to charges of inadmissibility. After all, if the provision applied to those who could hy- pothetically be rendered inadmissible, it could have said so. For example, the statute would have said that it applied when “the alien has committed an offense referred to in sec- tion 1182(a)(2) of this title” that either (2) “could render the alien inadmissible to the United States under section 1182(a)(2) of this title” or (3) could render the noncitizen “removable [i.e., deportable] from the United States under section 1227(a)(2) or 1227(a)(4) of this title.”2 —————— 2 The Court seems to suggest that the stop-time rule’s tense simply mirrors §1182(a)(2). See ante, at 13–14. It is true that §1182(a)(2) speaks in the present tense, stating that a noncitizen “is inadmissible” if she has been “convicted of ” or “admits having committed” certain of- fenses. §1182(a)(2)(A)(i). But the Court’s argument does not follow. Sec- tion 1182, by its terms, applies only to “[c]lasses of aliens ineligible for visas or admission.” §1182(a). Because the provision applies only to noncitizens seeking admission, it is only natural that the clause uses the present tense to describe when such a noncitizen “is inadmissible.” By Cite as: 590 U. S. ____ (2020) 9 SOTOMAYOR, J., dissenting The Government’s reading—that a noncitizen can be in- admissible under the stop-time rule without seeking admis- sion at all—flouts basic statutory-interpretation principles. Among “the most basic interpretative canons” is “that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superflu- ous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks and altera- tion omitted). Were the stop-time rule agnostic to whether the noncitizen actually seeks admission, then the rule’s third clause—regarding deportability—would be meaning- less. When a noncitizen is “removable”—i.e., deportable— under §1227 for an offense “referred to” in §1182(a)(2), he or she is also “inadmissible” for an offense “referred to” in §1182(a)(2). The third clause has meaning only if inadmis- sibility and deportability apply, as they always have, to sep- arate groups of noncitizens—noncitizens seeking admission on the one hand, and noncitizens already admitted on the other. To be sure, there are limited exceptions to the general rule that questions of admissibility apply only to nonciti- zens seeking formal admission. Noncitizens applying for adjustment of status must establish admissibility. §§1255(a), (l)(2). But that is because adjustment of status is an express proxy for admission: “Congress created the [process] to enable an alien physically present in the United States to become an LPR without incurring the expense and inconvenience of traveling abroad to obtain an immigrant visa” and then presumably demonstrating admissibility on return. DHS, U. S. Citizenship and Immigration Ser- vices Policy Manual, vol. 7, pt. A, ch. 1 (2020), https://www.uscis.gov/policy-manual. Far from a “ginned- —————— contrast, the stop-time rule, under the Government’s and Court’s read- ing, purports to apply to noncitizens not seeking admission at all—and who therefore could not possibly be adjudicated inadmissible. 10 BARTON v. BARR SOTOMAYOR, J., dissenting up label,” ante, at 15, the term “constructive admission” ex- presses precisely how the INA conceives of adjustment of status: an admissions process that occurs inside the United States as opposed to outside of it. Alternatively, the Government also relies on two narrow provisions of the INA applicable to “[s]pecial agricultural workers,” 8 U.S. C. §1160(a)(3)(B)(ii), and “certain en- trants before January 1, 1982,” §1255a(b)(2)(B). These pro- visions, it argues, demonstrate that throughout the INA, inadmissibility is a status untethered to admission. But these provisions, too, refer to noncitizens seeking adjust- ment of status. §1160(a)(1) (setting procedures for adjust- ment of status of certain noncitizens); §1255a(a) (same).3 Even if the Government were correct that these statutes deem a noncitizen inadmissible outside of an application for admission, its argument would rise and fall on a few provi- sions within the expansive INA.4 In any event, neither of these provisions is similar in structure and purpose to the stop-time rule. Neither refers to grounds of inadmissibility and grounds of deportability in tandem. What is more, nei- ther appears to confer or deny relief exclusively in removal proceedings—where the dichotomy between inadmissibility and deportability is most important. —————— 3 Indeed, one of the provisions suggests that, outside the context in which a noncitizen seeks adjustment of status (and thus seeks construc- tive admission), a noncitizen’s status can be terminated “only upon a de- termination . . . that the alien is deportable.” §1160(a)(3)(A). 4 The Government also notes that a noncitizen would be deportable were she inadmissible at entry (or during adjustment of status) but er- roneously admitted (or allowed to adjust status). Brief for Respondent 18–19 (citing §1227(a)(1)(A)). But this provision directly undermines the Government’s reading of the statute. Were inadmissibility a status un- tethered to admission, a noncitizen inadmissible at the time of entry would always be inadmissible. But because a noncitizen who was al- ready admitted cannot be adjudicated inadmissible, Congress made er- roneous admission a ground of deportability, not inadmissibility. Cite as: 590 U. S. ____ (2020) 11 SOTOMAYOR, J., dissenting By contrast, the Government concedes that the term “in- admissible” in the mandatory-detention statute—a provi- sion structurally similar to the stop-time rule—applies only to noncitizens capable of being charged with inadmissibil- ity. Brief for Respondent 30. That provision specifies, in relevant part, that the Government “shall take into custody any alien who—(A) is inadmissible by reason of having com- mitted any offense covered in section 1182(a)(2)” or “(C) is deportable under section 1227(a)(2)(A)(i) . . . on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year.” §1226(c)(1) (foot- note omitted). Although the term “inadmissible” in this context does not refer to an actual adjudication of inadmissibility, see Demore, 538 U.S., at 513, 531, the Government accepts that it must at least refer to a possible charge on a nonciti- zen seeking admission. Brief for Respondent 30. Other- wise, the statute would subject already-admitted nonciti- zens—even those who are not deportable for any criminal offense—to mandatory detention, simply because they oc- cupy the “status” of inadmissibility. This provision’s struc- ture is virtually the same as the stop-time rule: It refers to grounds of inadmissibility and grounds of deportability sep- arately and applies to a noncitizen in removal proceedings. Given the similar structure, the stop-time rule should be read the same as the mandatory-detention provision: to re- fer to adjudications that are possible rather than impossi- ble. If a noncitizen seeking admission has committed a crime under §1182(a)(2) and is convicted of or admits to the offense, that offense “renders” the noncitizen “inadmissible” because the noncitizen can be charged and found inadmis- sible based on that crime. But such an offense does not ren- der a noncitizen inadmissible if, like Barton, he or she was admitted years earlier and does not seek readmission. For a noncitizen who has already been admitted, Congress carved out a separate category of offenses in both the stop- 12 BARTON v. BARR SOTOMAYOR, J., dissenting time rule and the mandatory-detention provision: here, those referred to in §1182(a)(2) that render a noncitizen de- portable under §§1227(a)(2) and (a)(4). III The Court reaches a different result only by contorting the statutory language and by breezily waving away appli- cable canons of construction. At various points the Court seems to ignore the rule’s second and third clauses en- tirely—clauses that, as mentioned above, distinguish be- tween grounds of inadmissibility and grounds of deportabil- ity. The Court insists that the statute “operates like traditional criminal recidivist laws” because it precludes cancellation of removal for a noncitizen who “has committed an offense listed in §1182(a)(2) during the initial seven years of residence.” Ante, at 2; see also ante, at 7, 8, n. 5, 17. Had Congress intended for commission of a crime in §1182(a)(2) alone to trigger the stop-time rule, it would have said so. In fact, it would have stopped at the rule’s first clause, which (without more) states the Court’s rule: that the time of continuous residence stops whenever a noncitizen “has committed an offense referred to in section 1182(a)(2) of this title.” §1229b(d)(1). But that reading ignores the rest of what Congress wrote. Congress specified that it is not enough for a noncitizen to commit a crime listed in §1182(a)(2); that crime must also “rende[r] the alien inadmissible to the United States under section 1182(a)(2) of this title” or “removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” §1229b(d)(1). Those words have meaning—invoking the two-track structure of the INA and the distinction be- tween grounds of inadmissibility and grounds of deportabil- ity—and the Court cannot simply will them out of existence. Even when the Court finally discusses the second clause, “renders the alien inadmissible,” the Court raises more Cite as: 590 U. S. ____ (2020) 13 SOTOMAYOR, J., dissenting questions than it answers—and answers questions that it need not address at all. First, the Court claims, the clause makes clear that “cancellation of removal is precluded if an alien committed a §1182(a)(2) offense during the initial seven years of residence, even if (as in Barton’s case) the conviction occurred after the seven years elapsed.” Ante, at 9. Despite the emphasis the Court lays on this point, it is irrelevant to this case: Barton does not dispute that the stop-time rule is triggered by the date of commission of a crime rather than a later date of conviction. Brief for Peti- tioner 9, n. 4. The question in this case is whether certain offenses can possibly render Barton inadmissible when he does not seek admission and has already been admitted— regardless of whether one looks to the date of commission or the date of conviction of those offenses.5 Even if this question mattered and were properly before us, Congress could have made the same point—that the stop-time rule is triggered by commission of a crime—by omitting the second and third clauses entirely. It again could have written what the Court, at various points, seems to wish it had written: The stop-time rule is triggered when- ever a noncitizen “has committed an offense referred to in section 1182(a)(2) of this title.” The second and third clauses—which refer to later events, when a noncitizen is actually “render[ed]” inadmissible or deportable—make the Court’s aside less plausible, not more. The Court next insists that the second clause makes clear that the crime must “rende[r]” the noncitizen “inadmissi- ble”—which, in the Court’s view, requires only that a noncitizen admit the crime or be convicted of it. Ante, at 10. —————— 5 Courts have split over what event triggers the stop-time rule—com- mission of the offense or a second, later point at which the offense “ren- der[s]” the noncitizen inadmissible. Brief for Momodoulamin Jobe et al. as Amici Curiae 12–13. Because this point about the trigger date is nei- ther disputed here nor briefed by either party, the Court’s opinion should not be read to resolve a Circuit split that is not before this Court. 14 BARTON v. BARR SOTOMAYOR, J., dissenting But given the INA’s historic two-track structure, a nonciti- zen is not “render[ed]” inadmissible when convicted of an offense that cannot serve as a ground of removal at all. The Court also fails to clarify why, if conviction or admission alone renders any noncitizen inadmissible regardless of ad- mission status, Congress chose to add a third clause refer- ring to grounds of deportability. Indeed, what does the Court do about the canon against surplusage? The Court does not dispute that its reading makes the entire third clause of the stop-time rule mean- ingless. It offers only two rejoinders: (1) that the reference to subsection (a)(4) in the third clause is superfluous under either party’s reading, and (2) that a bit of surplusage makes no difference in any event. Ante, at 15–16. To be sure, “[s]ometimes the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 11). But the Court relies on more than just “some redundancy.” It dis- misses out of hand one of only three clauses in the stop-time rule—without regard for the clause’s pedigree or the core difference between deportability and inadmissibility. It remains this Court’s “ ‘duty “to give effect, if possible, to every clause and word of a statute.” ’ ” Duncan v. Walker, 533 U.S. 167, 174 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538–539 (1955)). It must there- fore be “ ‘reluctan[t] to treat statutory terms as surplusage’ in any setting,” 533 U.S., at 174 (quoting Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995))—especially in this context, where each word could dictate categorical ineligibility for relief from re- moval. It also does not matter that, as the Government points out, §1227(a)(4) did not initially refer to any crimes cross-referenced in §1182(a)(2). Brief for Respondent 32– Cite as: 590 U. S. ____ (2020) 15 SOTOMAYOR, J., dissenting 33.6 Congress’ decision to make a noncitizen ineligible for cancellation based on a to-be-determined class of crimes is far different from excising and giving no meaning to an en- tire clause. * * * At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construc- tion. It is also at odds with common sense. With virtually every other provision of the INA, Congress granted prefer- ential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton. But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an im- migration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s re- moval in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent. —————— 6 Barton acknowledges that, even now, the reference to §1227(a)(4) “does little or no work” for a separate reason: Noncitizens who are de- portable under that subsection are ineligible for cancellation of removal. Brief for Petitioner 33, n. 7. But, according to Barton, there are scenarios in which the reference to §1227(a)(4) nevertheless “ ‘may . . . not be a re- dundancy,’ ” ibid., and perhaps for this reason, the Government does not focus on this argument in its brief

The stop-time rule ends a noncitizen’s period of continu- ous residence, making him or her ineligible for certain relief from removal. But to trigger the rule, it takes more than commission of a specified criminal offense: The offense must also render a noncitizen either “inadmissible” or “de- portable.” In applying these important limitations, the rule directly references the two-track nature of the Immigration and Nationality Act (INA), a statute that has long distin- guished between noncitizens seeking admission and those already admitted. Inadmissibility, of course, pertains to noncitizens seeking admission; deportability relates to noncitizens already admitted but removable. The majority errs by conflating these two terms. It con- cludes that the term “inadmissible,” for the purposes of the stop-time rule, refers to a status that a noncitizen could ac- quire even if he or she is not seeking admission. Under this logic, petitioner Andre Barton is inadmissible yet, at the same time, lawfully admitted. Neither the express lan- guage of the statute nor any interpretative canons support this paradox; Barton cannot and should not be considered inadmissible for purposes of the stop-time rule because he has already been admitted to the country. Thus, for the 2 BARTON v. BARR SOTOMAYOR, J., dissenting stop-time rule to render Barton ineligible for relief from re- moval, the Government must show that he committed an offense that made him deportable. Because the Govern- ment cannot meet that burden, Barton should prevail. I respectfully dissent. I A Cancellation of removal is a form of immigration relief available to lawful permanent residents (LPRs) and other noncitizens, including those who have never been lawfully admitted. 8 U.S. C. To obtain this relief, both groups must continuously reside in the United States for a certain amount of time. (seven years for LPRs); (10 years for non-LPR noncitizens). The stop-time rule ends a noncitizen’s period of continu- ous residence (1) when the noncitizen “has committed an offense referred to in section 1182(a)(2) of this title” that either (2) “renders” the noncitizen “inadmissible to the United States under section 1182(a)(2) of this title” or (3) renders the noncitizen “removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” The second clause directly invokes grounds of inadmissibility; the third clause, although using the term “removable,” directly invokes grounds of deportability. See (specifying “[c]lasses of deportable aliens”).1 Both the second and the third clauses are cabined by the first: In addition to rendering a noncitizen either inadmissible or deportable, the offense must also be one “referred to” in That provision includes some—but not all—of the grounds of deportability in This distinction between “inadmissible” and “deportable” matters. Indeed, both are terms of art, so it is critical to —————— 1 Because the third clause refers to grounds of deportability, the Gov- ernment appears to agree that the terms “removable” and “deportable” are interchangeable. See Brief for Respondent 21–22. Cite as: 590 U. S. (2020) 3 SOTOMAYOR, J., dissenting understand their histories and their attached meaning over time. See (noting that “ ‘[w]here Congress borrows terms of art,’ ” with settled meaning, it “ ‘presumably knows and adopts the cluster of ideas that were attached to each borrowed word’ ” (quoting (1952))). Until Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), noncit- izens seeking physical entry were placed in “ ‘exclusion pro- ceeding[s],’ ” while those already physically present were placed in “ ‘deportation proceeding[s].’ ” Judulang v. Holder, Although the grounds for exclusion and deportation—and the procedures applying to each—evolved over time, the immigration laws retained a two-track system; different procedures and processes ap- plied to noncitizens who were deportable and noncitizens who were excludable. Brief for Immigration Law Professors as Amici Curiae 3–8. IIRIRA changed the proceedings and some of the lan- guage. All noncitizens are now channeled into “ ‘removal proceeding[s],’ ” and noncitizens previously labeled “exclud- able” are now labeled “ ‘inadmissible.’ ” Judulang, 565 U.S., at 46. IIRIRA also altered when a noncitizen faces grounds of inadmissibility, formerly exclusion: Rather than focusing on whether a noncitizen had physically entered the country, the statute now asks whether the noncitizen had been lawfully admitted, in any status, to the country. See 1182(a). Still, the immigration laws have retained their two-track structure. Inadmissibility and deportability remain sepa- rate concepts, triggered by different grounds. With few ex- ceptions, the grounds for inadmissibility are broader than those for deportability. Compare with (2)(A)(i) (reflecting different treatment for crimes involving moral turpitude). Further, while a noncitizen 4 BARTON v. BARR SOTOMAYOR, J., dissenting charged with inadmissibility bears the ultimate burden to show that he is admissible, the Government bears the bur- den of demonstrating that a noncitizen is deportable. (c)(3). Whether a noncitizen is charged with inadmissibility or deportability also affects what the noncitizen or the Gov- ernment must show to carry their respective burdens. A criminal ground for inadmissibility can be made out by showing either that the noncitizen admitted to conduct meeting the elements of a crime or that she was actually convicted of an offense. See, e.g., (noncitizen inadmis- sible because he admitted to health officer that he smoked marijuana in his youth); see also By con- trast, most criminal grounds for deportability can be estab- lished only through convictions. See §(2)(A)(i)–(v), (a)(2)(B)(i). Finally, the substantive standards for cancellation of re- moval are also less stringent for a subset of deportable noncitizens: LPRs like Barton. Among other things, while an otherwise-eligible LPR must merely demonstrate that he or she deserves the relief as a matter of discretion, see In re C-V-T-, non-LPRs must demonstrate exceptional and extremely unusual hardship to an LPR or citizen parent, spouse, or child, These separate categories and procedures—treating de- portable noncitizens more generously than inadmissible noncitizens, and treating one group of deportable nonciti- zens (LPRs) the most generously of all—stem from one an- imating principle. All noncitizens in this country are enti- tled to certain rights and protections, but the protections afforded to previously admitted noncitizens and LPRs are particularly strong. See 543– 544 (2003) (Souter, J., concurring in part and dissenting in Cite as: 590 U. S. (2020) 5 SOTOMAYOR, J., dissenting part). Indeed, “[t]he immigration laws give LPRs the op- portunity to establish a life permanently in this country by developing economic, familial, and social ties indistinguish- able from those of a citizen.” Because those already admitted, like Barton, are often presumed to have greater connections to the country, the immigration laws use separate terms and create separate procedures for noncitizens seeking admission to the country on the one hand, and those who were previously admitted on the other. The stop-time rule carries that distinction forward. The rule specifies how a period of continuous residence ends for noncitizens who are seeking admission and thus are inad- missible, as well as noncitizens who are already admitted and thus are deportable. By using separate terms and grounds for two groups of people, the stop-time rule thus reflects the two-track dichotomy for inadmissible or deport- able noncitizens that pervades the INA. B Barton is a longtime lawfully admitted resident of the United States. He and his mother moved to the United States from Jamaica when he was about 10 years old. They both entered legally and, through Barton’s stepfather, soon adjusted their status to LPRs. When Barton was placed in removal proceedings, all of his immediate family—his mother, his children, his fiancee—were living in the United States. He had not returned to Jamaica in 25 years. Barton was first arrested in 1996, when he was 17 or 18, after a friend shot at his ex-girlfriend’s house while he was present. Both he and his friend were convicted of, among other things, aggravated assault and possession of a fire- arm. Barton later testified before an immigration judge that he was unaware that his friend had a gun or was plan- ning to shoot it. After attending a boot camp and obtaining his GED, Bar- ton led a law-abiding life for several years. But in the mid- 6 BARTON v. BARR SOTOMAYOR, J., dissenting 2000s, Barton developed a drug problem and was convicted twice on possession charges. After attending two drug re- habilitation programs, Barton was never arrested again. He graduated from college, began running an automobile repair shop, and became a father to four young children. Just a few years ago—nearly 10 years after his last ar- rest—the Government detained Barton and placed him in removal proceedings. Because he had been lawfully admit- ted to the country, the Government could not charge him with any grounds of inadmissibility. Rather, the Govern- ment charged, and Barton conceded, that he was deportable based on prior firearms and drug convictions. (All agree that Barton’s aggravated-assault offense did not qualify as a deportable offense under ) Barton then sought can- cellation of removal. Perhaps recognizing that Barton had a strong case for cancellation of removal on the merits, see C-V-T-, 22 I. & N. Dec., at 11 (factors such as “family ties within the United States, residence of long duration in this country (particu- larly when the inception of residence occurred at a young age),” and “business ties” all favor a noncitizen seeking can- cellation), the Government contended that Barton was cat- egorically ineligible for that relief. It reasoned that Bar- ton’s prior offenses triggered the stop-time rule and that Barton therefore could not meet the continuous-residence requirement. The problem (for the Government) was finding a prior of- fense that actually triggered the stop-time rule. None of the offenses that had made Barton deportable—his firearms and drug convictions—satisfied the stop-time rule’s first clause because does not “refe[r] to” those of- fenses. The Government therefore could not argue that Barton’s firearms and drug offenses ended Barton’s period of continuous residence under the stop-time rule. As for Barton’s aggravated-assault offense, it was not a ground for deportability under and therefore did not render Cite as: 590 U. S. (2020) 7 SOTOMAYOR, J., dissenting him deportable under the third clause of the stop-time rule. So the Government took a different tack: It argued that, even though Barton had already been admitted (and was not seeking readmission), his aggravated-assault offense “render[ed him] inadmissible” under the second clause of the stop-time rule. That is, although the Government could not charge Barton with inadmissibility, it relied upon a ground of inadmissibility to assert that Barton was not en- titled to relief from removal. The Immigration Judge agreed with the Government. The judge made clear, however, that she would have granted Barton’s cancellation application had he satisfied the continuous-residence requirement. The judge cited, among other things, Barton’s strong family ties, including his four young children who were all U. S. citizens. The judge concluded that because “his last arrest was over 10 years ago,” Barton “is clearly rehabilitated.” The judge also concluded that Barton’s family “relies on him and would suffer hardship if he were to be deported to Jamaica.” App. to Pet. for Cert. 36a. II Barton makes two arguments to this Court. The Court focuses on the first—that the stop-time rule will “rende[r]” a noncitizen inadmissible only if the person is actually ad- judicated inadmissible based on the given offense. But whether Barton is right on that score is irrelevant because Barton’s second argument—which the Court fails to grap- ple with meaningfully—is surely correct: At the very least, an offense cannot “rende[r]” someone inadmissible unless the Government can legally charge that noncitizen with a ground of inadmissibility. That is, the stop-time rule is con- sistent with basic immigration law: A noncitizen who has already been admitted, and is not seeking readmission, can- not be charged with any ground of inadmissibility and thus cannot be deemed inadmissible. 8 BARTON v. BARR SOTOMAYOR, J., dissenting Because the stop-time rule uses the terms “removable” (i.e., deportable) and “inadmissible” in the disjunctive, the Court must analyze the rule against the INA’s historic two- track backdrop. That context confirms that the term “inad- missible” cannot refer to a noncitizen who, like Barton, has already been admitted and is not seeking readmission. In- deed, the terms “inadmissible” and “deportable” are mutu- ally exclusive in removal proceedings: A noncitizen can be deemed either inadmissible or deportable, not both. (for the purposes of removal statute and cancellation of removal—a noncitizen is “inadmissible under section 1182” if “not admitted to the United States,” and “deportable under section 1227” if “ad- mitted to the United States”). For the purposes of the stop- time rule, a person is not “inadmissible” unless that person actually seeks admission, and thus is subject to charges of inadmissibility. After all, if the provision applied to those who could hy- pothetically be rendered inadmissible, it could have said so. For example, the statute would have said that it applied when “the alien has committed an offense referred to in sec- tion 1182(a)(2) of this title” that either (2) “could render the alien inadmissible to the United States under section 1182(a)(2) of this title” or (3) could render the noncitizen “removable [i.e., deportable] from the United States under section 1227(a)(2) or 1227(a)(4) of this title.”2 —————— 2 The Court seems to suggest that the stop-time rule’s tense simply mirrors See ante, at 13–14. It is true that speaks in the present tense, stating that a noncitizen “is inadmissible” if she has been “convicted of ” or “admits having committed” certain of- fenses. (A)(i). But the Court’s argument does not follow. Sec- tion 1182, by its terms, applies only to “[c]lasses of aliens ineligible for visas or admission.” Because the provision applies only to noncitizens seeking admission, it is only natural that the clause uses the present tense to describe when such a noncitizen “is inadmissible.” By Cite as: 590 U. S. (2020) 9 SOTOMAYOR, J., dissenting The Government’s reading—that a noncitizen can be in- admissible under the stop-time rule without seeking admis- sion at all—flouts basic statutory-interpretation principles. Among “the most basic interpretative canons” is “that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superflu- ous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (internal quotation marks and altera- tion omitted). Were the stop-time rule agnostic to whether the noncitizen actually seeks admission, then the rule’s third clause—regarding deportability—would be meaning- less. When a noncitizen is “removable”—i.e., deportable— under for an offense “referred to” in he or she is also “inadmissible” for an offense “referred to” in The third clause has meaning only if inadmis- sibility and deportability apply, as they always have, to sep- arate groups of noncitizens—noncitizens seeking admission on the one hand, and noncitizens already admitted on the other. To be sure, there are limited exceptions to the general rule that questions of admissibility apply only to nonciti- zens seeking formal admission. Noncitizens applying for adjustment of status must establish admissibility. (l)(2). But that is because adjustment of status is an express proxy for admission: “Congress created the [process] to enable an alien physically present in the United States to become an LPR without incurring the expense and inconvenience of traveling abroad to obtain an immigrant visa” and then presumably demonstrating admissibility on return. DHS, U. S. Citizenship and Immigration Ser- vices Policy Manual, vol. 7, pt. A, ch. 1 (2020), https://www.uscis.gov/policy-manual. Far from a “ginned- —————— contrast, the stop-time rule, under the Government’s and Court’s read- ing, purports to apply to noncitizens not seeking admission at all—and who therefore could not possibly be adjudicated inadmissible. 10 BARTON v. BARR SOTOMAYOR, J., dissenting up label,” ante, at 15, the term “constructive admission” ex- presses precisely how the INA conceives of adjustment of status: an admissions process that occurs inside the United States as opposed to outside of it. Alternatively, the Government also relies on two narrow provisions of the INA applicable to “[s]pecial agricultural workers,” 8 U.S. C. and “certain en- trants before January 1, 1982,” These pro- visions, it argues, demonstrate that throughout the INA, inadmissibility is a status untethered to admission. But these provisions, too, refer to noncitizens seeking adjust- ment of status. (setting procedures for adjust- ment of status of certain noncitizens); (same).3 Even if the Government were correct that these statutes deem a noncitizen inadmissible outside of an application for admission, its argument would rise and fall on a few provi- sions within the expansive INA.4 In any event, neither of these provisions is similar in structure and purpose to the stop-time rule. Neither refers to grounds of inadmissibility and grounds of deportability in tandem. What is more, nei- ther appears to confer or deny relief exclusively in removal proceedings—where the dichotomy between inadmissibility and deportability is most important. —————— 3 Indeed, one of the provisions suggests that, outside the context in which a noncitizen seeks adjustment of status (and thus seeks construc- tive admission), a noncitizen’s status can be terminated “only upon a de- termination that the alien is deportable.” 4 The Government also notes that a noncitizen would be deportable were she inadmissible at entry (or during adjustment of status) but er- roneously admitted (or allowed to adjust status). Brief for Respondent 18–19 (citing (1)(A)). But this provision directly undermines the Government’s reading of the statute. Were inadmissibility a status un- tethered to admission, a noncitizen inadmissible at the time of entry would always be inadmissible. But because a noncitizen who was al- ready admitted cannot be adjudicated inadmissible, Congress made er- roneous admission a ground of deportability, not inadmissibility. Cite as: 590 U. S. (2020) 11 SOTOMAYOR, J., dissenting By contrast, the Government concedes that the term “in- admissible” in the mandatory-detention statute—a provi- sion structurally similar to the stop-time rule—applies only to noncitizens capable of being charged with inadmissibil- ity. Brief for Respondent 30. That provision specifies, in relevant part, that the Government “shall take into custody any alien who—(A) is inadmissible by reason of having com- mitted any offense covered in section 1182(a)(2)” or “(C) is deportable under section 1227(a)(2)(A)(i) on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year.” (foot- note omitted). Although the term “inadmissible” in this context does not refer to an actual adjudication of inadmissibility, see 531, the Government accepts that it must at least refer to a possible charge on a nonciti- zen seeking admission. Brief for Respondent 30. Other- wise, the statute would subject already-admitted nonciti- zens—even those who are not deportable for any criminal offense—to mandatory detention, simply because they oc- cupy the “status” of inadmissibility. This provision’s struc- ture is virtually the same as the stop-time rule: It refers to grounds of inadmissibility and grounds of deportability sep- arately and applies to a noncitizen in removal proceedings. Given the similar structure, the stop-time rule should be read the same as the mandatory-detention provision: to re- fer to adjudications that are possible rather than impossi- ble. If a noncitizen seeking admission has committed a crime under and is convicted of or admits to the offense, that offense “renders” the noncitizen “inadmissible” because the noncitizen can be charged and found inadmis- sible based on that crime. But such an offense does not ren- der a noncitizen inadmissible if, like Barton, he or she was admitted years earlier and does not seek readmission. For a noncitizen who has already been admitted, Congress carved out a separate category of offenses in both the stop- 12 BARTON v. BARR SOTOMAYOR, J., dissenting time rule and the mandatory-detention provision: here, those referred to in that render a noncitizen de- portable under §(2) and (a)(4). III The Court reaches a different result only by contorting the statutory language and by breezily waving away appli- cable canons of construction. At various points the Court seems to ignore the rule’s second and third clauses en- tirely—clauses that, as mentioned above, distinguish be- tween grounds of inadmissibility and grounds of deportabil- ity. The Court insists that the statute “operates like traditional criminal recidivist laws” because it precludes cancellation of removal for a noncitizen who “has committed an offense listed in during the initial seven years of residence.” Ante, at 2; see also ante, at 7, 8, n. 5, 17. Had Congress intended for commission of a crime in alone to trigger the stop-time rule, it would have said so. In fact, it would have stopped at the rule’s first clause, which (without more) states the Court’s rule: that the time of continuous residence stops whenever a noncitizen “has committed an offense referred to in section 1182(a)(2) of this title.” But that reading ignores the rest of what Congress wrote. Congress specified that it is not enough for a noncitizen to commit a crime listed in ; that crime must also “rende[r] the alien inadmissible to the United States under section 1182(a)(2) of this title” or “removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title.” Those words have meaning—invoking the two-track structure of the INA and the distinction be- tween grounds of inadmissibility and grounds of deportabil- ity—and the Court cannot simply will them out of existence. Even when the Court finally discusses the second clause, “renders the alien inadmissible,” the Court raises more Cite as: 590 U. S. (2020) 13 SOTOMAYOR, J., dissenting questions than it answers—and answers questions that it need not address at all. First, the Court claims, the clause makes clear that “cancellation of removal is precluded if an alien committed a offense during the initial seven years of residence, even if (as in Barton’s case) the conviction occurred after the seven years elapsed.” Ante, at 9. Despite the emphasis the Court lays on this point, it is irrelevant to this case: Barton does not dispute that the stop-time rule is triggered by the date of commission of a crime rather than a later date of conviction. Brief for Peti- tioner 9, n. 4. The question in this case is whether certain offenses can possibly render Barton inadmissible when he does not seek admission and has already been admitted— regardless of whether one looks to the date of commission or the date of conviction of those offenses.5 Even if this question mattered and were properly before us, Congress could have made the same point—that the stop-time rule is triggered by commission of a crime—by omitting the second and third clauses entirely. It again could have written what the Court, at various points, seems to wish it had written: The stop-time rule is triggered when- ever a noncitizen “has committed an offense referred to in section 1182(a)(2) of this title.” The second and third clauses—which refer to later events, when a noncitizen is actually “render[ed]” inadmissible or deportable—make the Court’s aside less plausible, not more. The Court next insists that the second clause makes clear that the crime must “rende[r]” the noncitizen “inadmissi- ble”—which, in the Court’s view, requires only that a noncitizen admit the crime or be convicted of it. Ante, at 10. —————— 5 Courts have split over what event triggers the stop-time rule—com- mission of the offense or a second, later point at which the offense “ren- der[s]” the noncitizen inadmissible. Brief for Momodoulamin Jobe et al. as Amici Curiae 12–13. Because this point about the trigger date is nei- ther disputed here nor briefed by either party, the Court’s opinion should not be read to resolve a Circuit split that is not before this Court. 14 BARTON v. BARR SOTOMAYOR, J., dissenting But given the INA’s historic two-track structure, a nonciti- zen is not “render[ed]” inadmissible when convicted of an offense that cannot serve as a ground of removal at all. The Court also fails to clarify why, if conviction or admission alone renders any noncitizen inadmissible regardless of ad- mission status, Congress chose to add a third clause refer- ring to grounds of deportability. Indeed, what does the Court do about the canon against surplusage? The Court does not dispute that its reading makes the entire third clause of the stop-time rule mean- ingless. It offers only two rejoinders: (1) that the reference to subsection (a)(4) in the third clause is superfluous under either party’s reading, and (2) that a bit of surplusage makes no difference in any event. Ante, at 15–16. To be sure, “[s]ometimes the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S. (2019) (slip op., at 11). But the Court relies on more than just “some redundancy.” It dis- misses out of hand one of only three clauses in the stop-time rule—without regard for the clause’s pedigree or the core difference between deportability and inadmissibility. It remains this Court’s “ ‘duty “to give effect, if possible, to every clause and word of a statute.” ’ ” ). It must there- fore be “ ‘reluctan[t] to treat statutory terms as surplusage’ in any setting,” 533 U.S., at (quoting 698 (1995))—especially in this context, where each word could dictate categorical ineligibility for relief from re- moval. It also does not matter that, as the Government points out, (4) did not initially refer to any crimes cross-referenced in Brief for Respondent 32– Cite as: 590 U. S. (2020) 15 SOTOMAYOR, J., dissenting 33.6 Congress’ decision to make a noncitizen ineligible for cancellation based on a to-be-determined class of crimes is far different from excising and giving no meaning to an en- tire clause. * * * At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construc- tion. It is also at odds with common sense. With virtually every other provision of the INA, Congress granted prefer- ential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton. But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an im- migration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s re- moval in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent. —————— 6 Barton acknowledges that, even now, the reference to (4) “does little or no work” for a separate reason: Noncitizens who are de- portable under that subsection are ineligible for cancellation of removal. Brief for Petitioner 33, n. 7. But, according to Barton, there are scenarios in which the reference to (4) nevertheless “ ‘may not be a re- dundancy,’ ” ibid., and perhaps for this reason, the Government does not focus on this argument in its brief

Justice O'Connor

majority

Norfolk Southern R. Co. v. Shanklin

2000-04-17

https://www.courtlistener.com/opinion/118355/norfolk-southern-r-co-v-shanklin/

https://www.courtlistener.com/api/rest/v3/clusters/118355/

1999-047

This case involves an action for damages against a railroad due to its alleged failure to maintain adequate warning devices at a grade crossing in western Tennessee. After her husband was killed in a crossing accident, respondent brought suit against petitioner, the operator of the train involved in the collision. Respondent claimed that the warning signs posted at the crossing, which had been installed using federal funds, were insufficient to warn motorists of the danger posed by passing trains. The specific issue we must decide is whether the Federal Railroad Safety Act of 1970, 84 Stat. 971, as amended, 49 U.S. C. § 20101 et seq., in conjunction with the Federal Highway Administration's regulation addressing the adequacy of warning devices installed with federal funds, pre-empts state tort actions such as respondent's. We hold that it does. I A In 1970, Congress enacted the Federal Railroad Safety Act (FRSA) "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S. C. § 20101. The FRSA grants the Secretary of Transportation the authority to "prescribe regulations and issue orders for every area of railroad safety," § 20103(a), and directs the Secretary to "maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem," § —4(a). The FRSA also contains an express pre-emption provision, which states: "Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or *348 issues an order covering the subject matter of the State requirement." § 20106. Although the pre-emption provision contains an exception, see ibid., it is inapplicable here. Three years after passing the FRSA, Congress enacted the Highway Safety Act of 1973, § 203, 87 Stat. 283, which, among other things, created the Federal Railway-Highway Crossings Program (Crossings Program), see 23 U.S. C. § 130. That program makes funds available to States for the "cost of construction of projects for the elimination of hazards of railway-highway crossings." § 130(a). To participate in the Crossings Program, all States must "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." § 130(d). That schedule must, "[a]t a minimum, . . . provide signs for all railway-highway crossings." Ibid. The Secretary, through the Federal Highway Administration (FHWA), has promulgated several regulations implementing the Crossings Program. One of those regulations, 23 CFR § 646.214(b) (1999), addresses the design of grade crossing improvements. More specifically, §§ 646.214(b)(3) and (4) address the adequacy of warning devices installed under the program.[*] According to § 646.214(b)(3), "[a]dequate *349 warning devices . . . on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals" if any of several conditions are present. Those conditions include (A) "[m]ultiple main line railroad tracks," (B) multiple tracks in the vicinity such that one train might "obscure the movement of another train approaching the crossing," (C) high speed trains combined with limited sight distances, (D) a "combination of high speeds and moderately high volumes of highway and railroad traffic," (E) the use of the crossing by "substantial numbers of schoolbuses or trucks carrying hazardous materials," or (F) when a "diagnostic team recommends them." § 646.214(b)(3)(i). Subsection (b)(4) states that "[f]or crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA." Thus, at crossings where any of the conditions listed in (b)(3) exist, adequate warning devices, if installed using federal funds, are automatic gates and flashing lights. And where the (b)(3) conditions are not present, the decision of what devices to install is subject to FHWA approval. "(D) A combination of high speeds and moderately high volumes of highway and railroad traffic. "(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions. "(F) A diagnostic team recommends them. "(ii)In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable. "(4) For crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA." *350 B Shortly after 5 a.m. on October 3, 1993, Eddie Shanklin drove his truck eastward on Oakwood Church Road in Gibson County, Tennessee. App. to Pet. for Cert. 28a. As Shanklin crossed the railroad tracks that intersect the road, he was struck and killed by a train operated by petitioner. Ibid. At the time of the accident, the Oakwood Church Road crossing was equipped with advance warning signs and reflectorized crossbucks, id., at 34a, the familiar black-andwhite, X-shaped signs that read "RAILROAD CROSSING," see U. S. Dept. of Transportation, Federal Highway Administration, Manual on Uniform Traffic Control Devices § 8B-2 (1988) (MUTCD). The Tennessee Department of Transportation (TDOT) had installed the signs in 1987 with federal funds received under the Crossings Program. App. to Pet. for Cert. 3a. The TDOT had requested the funds as part of a project to install such signs at 196 grade crossings in 11 Tennessee counties. See App. 128-131. That request contained information about each crossing covered by the project, including the presence or absence of several of the factors listed in § 646.214(b)(3). See id., at 134. The FHWA approved the project, App. to Pet. for Cert. 34a, and federal funds accounted for 99% of the cost of installing the signs at the crossings, see App. 133. It is undisputed that the signs at the Oakwood Church Road crossing were installed and fully compliant with the federal standards for such devices at the time of the accident. Following the accident, Mr. Shanklin's widow, respondent Dedra Shanklin, brought this diversity wrongful death action against petitioner in the United States District Court for the Western District of Tennessee. Id., at 29-34. Respondent's claims were based on Tennessee statutory and common law. Id., at 31-33. She alleged that petitioner had been negligent in several respects, including by failing to maintain adequate warning devices at the crossing. Ibid. Petitioner moved for summary judgment on the ground that the FRSA *351 pre-empted respondent's suit. App. to Pet. for Cert. 28a. The District Court held that respondent's allegation that the signs installed at the crossing were inadequate was not preempted. Id., at 29a—37a. Respondent thus presented her inadequate warning device claim and three other allegations of negligence to a jury, which found that petitioner and Mr. Shanklin had both been negligent. App. 47. The jury assigned 70% responsibility to petitioner and 30% to Mr. Shanklin, and it assessed damages of $615,379. Ibid. The District Court accordingly entered judgment of $430,765.30 for respondent. Id., at 48. The Court of Appeals for the Sixth Circuit affirmed, holding that the FRSA did not pre-empt respondent's claim that the devices at the crossing were inadequate. 173 F.3d 386 (1999). It reasoned that federal funding alone is insufficient to trigger pre-emption of state tort actions under the FRSA and §§ 646.214(b)(3) and (4). Id., at 394. Instead, the railroad must establish that § 646.214(b)(3) or (4) was "applied" to the crossing at issue, meaning that the FHWA affirmatively approved the particular devices installed at the crossing as adequate for safety. Id., at 397. The court concluded that, because the TDOT had installed the signs for the purpose of providing "minimum protection" at the Oakwood Church Road crossing, there had been no such individualized determination of adequacy. We granted certiorari, 528 U.S. 949 (1999), to resolve a conflict among the Courts of Appeals as to whether the FRSA, by virtue of 23 CFR §§ 646.214(b)(3) and (4) (1999), pre-empts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the installation of the devices. Compare Ingram v. CSX Transp., Inc., 146 F.3d 858 (CA11 1998) (holding that federal funding of crossing improvement triggers pre-emption under FRSA); Armijo v. Atchison, Topeka & Santa Fe R. Co., 87 F.3d 1188 (CA10 1996) (same); Elrod v. Burlington Northern R. Co., 68 F.3d 241 (CA8 1995) *352 (same); Hester v. CSX Transp., Inc., 61 F.3d 382 (CA5 1995) (same), cert. denied, 516 U.S. 1093 (1996), with 173 F.3d 386 (CA6 1999) (case below); Shots v. CSX Transp., Inc., 38 F.3d 304 (CA7 1994) (no pre-emption until representative of Federal Government has determined that devices installed are adequate for safety). II We previously addressed the pre-emptive effect of the FHWA's regulations implementing the Crossings Program in CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993). In that case, we explained that the language of the FRSA's pre-emption provision dictates that, to pre-empt state law, the federal regulation must "cover" the same subject matter, and not merely "`touch upon' or `relate to' that subject matter." Id., at 664; see also 49 U.S. C. § 20106. Thus, "preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Easterwood, supra, at 664. Applying this standard, we concluded that the regulations contained in 23 CFR pt. 924 (1999), which "establish the general terms of the bargain between the Federal and State Governments" for the Crossings Program, are not pre-emptive. 507 U.S., at 667. We also held that § 646.214(b)(1), which requires that all traffic control devices installed under the program comply with the MUTCD, does not pre-empt state tort actions. Id., at 668— 670. The MUTCD "provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between Federal and State Governments and between States and railroads," and hence "disavows any claim to cover the subject matter of that body of law." Id., at 669-670. With respect to §§ 646.214(b)(3) and (4), however, we reached a different conclusion. Because those regulations "establish requirements as to the installation of particular warning devices," we held that "when they are applicable, state tort law is pre-empted." Id., at 670. Unlike the other *353 regulations, "§§ 646.214(b)(3) and (4) displace state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." Ibid. As a result, those regulations "effectively set the terms under which railroads are to participate in the improvement of crossings." Ibid. In Easterwood itself, we ultimately concluded that the plaintiff's state tort claim was not pre-empted. Ibid. As here, the plaintiff brought a wrongful death action alleging that the railroad had not maintained adequate warning devices at a particular grade crossing. Id., at 661. We held that §§ 646.214(b)(3) and (4) were not applicable because the warning devices for which federal funds had been obtained were never actually installed at the crossing where the accident occurred. Id., at 671-673. Nonetheless, we made clear that, when they do apply, §§ 646.214(b)(3) and (4) "cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings." Id., at 671. The sole question in this case, then, is whether §§ 646.214(b)(3) and (4) "are applicable" to all warning devices actually installed with federal funds. We believe that Easterwood answers this question as well. As an original matter, one could plausibly read §§ 646.214(b)(3) and (4) as being purely definitional, establishing a standard for the adequacy of federally funded warning devices but not requiring that all such devices meet that standard. Easterwood rejected this approach, however, and held that the requirements spelled out in (b)(3) and (4) are mandatory for all warning devices installed with federal funds. "[F]or projects that involve grade crossings . . . in which `Federal-aid funds participate in the installation of the [warning] devices,' regulations specify warning devices that must be installed. " Id., at 666 (emphasis added). Once it is accepted that the regulations are not merely definitional, their scope is plain: They apply to "any project where *354 Federal-aid funds participate in the installation of the devices." 23 CFR § 646.214(b)(3)(i) (1999). Sections 646.214(b)(3) and (4) therefore establish a standard of adequacy that "determine[s] the devices to be installed" when federal funds participate in the crossing improvement project. Easterwood, 507 U. S., at 671. If a crossing presents those conditions listed in (b)(3), the State must install automatic gates and flashing lights; if the (b)(3) factors are absent, (b)(4) dictates that the decision as to what devices to install is subject to FHWA approval. See id., at 670-671. In either case, § 646.214(b)(3) or (4) "is applicable" and determines the type of warning device that is "adequate" under federal law. As a result, once the FHWA has funded the crossing improvement and the warning devices are actually installed and operating, the regulation "displace[s] state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." Id., at 670. Importantly, this is precisely the interpretation of §§ 646.214(b)(3) and (4) that the FHWA endorsed in Easterwood. Appearing as amicus curiae, the Government explained that § 646.214(b) "establishes substantive standards for what constitutes adequate safety devices on grade crossing improvement projects financed with federal funds." Brief for United States as Amicus Curiae in CSX Transp., Inc. v. Easterwood, O. T. 1992, Nos. 91-790 and 91-1206, p. 23. As a result, §§ 646.214(b)(3) and (4) "cover the subject matter of adequate safety devices at crossings that have been improved with the use of federal funds." Ibid. More specifically, the Government stated that § 646.214(b) "requires gate arms in certain circumstances, and requires FHWA approval of the safety devices in all other circumstances. Thus, the warning devices in place at a crossing improved with the use of federal funds have, by definition, been specifically found to be adequate under a regulation issued by the Secretary. Any state rule that *355 more or different crossing devices were necessary at a federally funded crossing is therefore preempted." Id., at 24. Thus, Easterwood adopted the FHWA's own understanding of the application of §§ 646.214(b)(3) and (4), a regulation that the agency had been administering for 17 years. Respondent and the Government now argue that §§ 646.214(b)(3) and (4) are more limited in scope and only apply where the warning devices have been selected based on diagnostic studies and particularized analyses of the conditions at the crossing. See Brief for Respondent 16, 24; Brief for United States as Amicus Curiae 22 (hereinafter Brief for United States). They contend that the Crossings Program actually comprises two distinct programs—the "minimum protection" program and the "priority" or "hazard" program. See Brief for Respondent 1-7; Brief for United States 15-21. Under the "minimum protection" program, they argue, States obtain federal funds merely to equip crossings with advance warning signs and reflectorized crossbucks, the bare minimum required by the MUTCD, without any judgment as to whether the signs are adequate. See Brief for Respondent 5-7, 30-36; Brief for United States 15-21. Under the "priority" or "hazard" program, in contrast, diagnostic teams conduct individualized assessments of particular crossings, and state or FHWA officials make specific judgments about the adequacy of the warning devices using the criteria set out in § 646.214(b)(3). See Brief for Respondent 5-7, 34-35; Brief for United States 18-21. They therefore contend that (b)(3) and (4) only apply to devices installed under the "priority" or "hazard" program, when a diagnostic team has actually applied the decisional process mandated by (b)(3). See Brief for Respondent 16; Brief for United States 18-25. Only then has the regulation prescribed a federal standard for the adequacy of the warning devices that displaces state law covering the same subject. *356 This construction, however, contradicts the regulation's plain text. Sections 646.214(b)(3) and (4) make no distinction between devices installed for "minimum protection" and those installed under a so-called "priority" or "hazard" program. Nor does their applicability depend on any individualized determination of adequacy by a diagnostic team or an FHWA official. Rather, as the FHWA itself explained in its Easterwood brief, §§ 646.214(b)(3) and (4) have a "comprehensive scope." Brief for United States in CSX Transp., Inc. v. Easterwood, O. T. 1992, Nos. 91-790 and 91-1206, at 12. Section 646.214(b)(3) states that its requirements apply to "any project where Federal-aid funds participate in the installation of the devices." 23 CFR § 646.214(b)(3)(i) (1999) (emphasis added). And § 646.214(b)(4) applies to all federally funded crossings that do not meet the criteria specified in (b)(3). Either way, the federal standard for adequacy applies to the crossing improvement and "substantially subsume[s] the subject matter of the relevant state law." Easterwood, 507 U. S., at 664. Thus, contrary to the Government's position here, §§ 646.214(b)(3) and (4) "specify warning devices that must be installed" as a part of all federally funded crossing improvements. Id., at 666. Although generally "an agency's construction of its own regulations is entitled to substantial deference," Lyng v. Payne, 476 U.S. 926, 939 (1986), no such deference is appropriate here. Not only is the FHWA's interpretation inconsistent with the text of §§ 646.214(b)(3) and (4), see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989), but it also contradicts the agency's own previous construction that this Court adopted as authoritative in Easterwood, cf. Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990) ("Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning"). *357 The dissent contends that, under our holding, state law is pre-empted even though "[n]o authority, federal or state, has found that the signs in place" are "adequate to protect safety." Post, at 360 (opinion of Ginsburg, J.). This presupposes that States have not fulfilled their obligation to comply with §§ 646.214(b)(3) and (4). Those subsections establish a standard for adequacy that States are required to follow in determining what devices to install when federal funds are used. The dissent also argues that Easterwood did not hold that federal funding of the devices is "sufficient" to effect pre-emption, and that "any statement as to the automatic preemptive effect of federal funding should have remained open for reconsideration in a later case." Post, at 361. But Easterwood did not, in fact, leave this question open. Instead, at the behest of the FHWA, the Court clearly stated that §§ 646.214(b)(3) and (4) pre-empt state tort claims concerning the adequacy of all warning devices installed with the participation of federal funds. Respondent also argues that pre-emption does not lie in this particular case because the Oakwood Church Road crossing presented several of the factors listed in § 646.214(b)(3), and because the TDOT did not install pavement markings as required by the MUTCD. See Brief for Respondent 20-22, 36; Brief in Opposition 6-8. This misconceives how pre-emption operates under these circumstances. When the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject. At that point, the regulation dictates "the devices to be installed and the means by which railroads are to participate in their selection." Easterwood, supra, at 671. It is this displacement of state law concerning the devices' adequacy, and not the State's or the FHWA's adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the *358 MUTCD, that pre-empts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question. It should be noted that nothing prevents a State from revisiting the adequacy of devices installed using federal funds. States are free to install more protective devices at such crossings with their own funds or with additional funding from the FHWA. What States cannot do—once they have installed federally funded devices at a particular crossing— is hold the railroad responsible for the adequacy of those devices. The dissent objects that this bestows on railroads a "double windfall": The Federal Government pays for the installation of the devices, and the railroad is simultaneously absolved of state tort liability. Post, at 360-361. But the same is true of the result urged by respondent and the Government. Respondent and the Government acknowledge that §§ 646.214(b)(3) and (4) can pre-empt state tort law, but they argue that pre-emption only occurs when the State has installed the devices pursuant to a diagnostic team's analysis of the crossing in question. Under this reading, railroads would receive the same "double windfall"—federal funding of the devices and pre-emption of state tort law—so long as a diagnostic team has evaluated the crossing. The supposed conferral of a "windfall" on the railroads therefore casts no doubt on our construction of the regulation. Sections 646.214(b)(3) and (4) "cover the subject matter" of the adequacy of warning devices installed with the participation of federal funds. As a result, the FRSA pre-empts respondent's state tort claim that the advance warning signs and reflectorized crossbucks installed at the Oakwood Church Road crossing were inadequate. Because the TDOT used federal funds for the signs' installation, §§ 646.214(b)(3) and (4) governed the selection and installation of the devices. And because the TDOT determined that warning devices *359 other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the FHWA. See § 646.214(b)(4). Once the FHWA approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject, thereby preempting respondent's claim. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case involves an action for damages against a railroad due to its alleged failure to maintain adequate warning devices at a grade crossing in western Tennessee. After her husband was killed in a crossing accident, respondent brought suit against petitioner, the operator of the train involved in the collision. Respondent claimed that the warning signs posted at the crossing, which had been installed using federal funds, were insufficient to warn motorists of the danger posed by passing trains. The specific issue we must decide is whether the Federal Railroad Safety Act of 1970, as amended, 49 U.S. C. 20101 et seq., in conjunction with the Federal Highway Administration's regulation addressing the adequacy of warning devices installed with federal funds, pre-empts state tort actions such as respondent's. We hold that it does. I A In 1970, Congress enacted the Federal Railroad Safety Act (FRSA) "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S. C. 20101. The FRSA grants the Secretary of Transportation the authority to "prescribe regulations and issue orders for every area of railroad safety," 20103(a), and directs the Secretary to "maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem," —4(a). The FRSA also contains an express pre-emption provision, which states: "Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or *348 issues an order covering the subject matter of the State requirement." 20106. Although the pre-emption provision contains an exception, see ib it is inapplicable here. Three years after passing the FRSA, Congress enacted the Highway Safety Act of 1973, 203, which, among other things, created the Federal Railway-Highway Crossings Program (Crossings Program), see 23 U.S. C. 130. That program makes funds available to States for the "cost of construction of projects for the elimination of hazards of railway-highway crossings." 130(a). To participate in the Crossings Program, all States must "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." 130(d). That schedule must, "[a]t a minimum, provide signs for all railway-highway crossings." The Secretary, through the Federal Highway Administration (FHWA), has promulgated several regulations implementing the Crossings Program. One of those regulations, 23 CFR 646.214(b) addresses the design of grade crossing improvements. More specifically, 646.214(b)(3) and (4) address the adequacy of warning devices installed under the program.[*] According to 646.214(b)(3), "[a]dequate *349 warning devices on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals" if any of several conditions are present. Those conditions include (A) "[m]ultiple main line railroad tracks," (B) multiple tracks in the vicinity such that one train might "obscure the movement of another train approaching the crossing," (C) high speed trains combined with limited sight distances, (D) a "combination of high speeds and moderately high volumes of highway and railroad traffic," (E) the use of the crossing by "substantial numbers of schoolbuses or trucks carrying hazardous materials," or (F) when a "diagnostic team recommends them." 646.214(b)(3)(i). Subsection (b)(4) states that "[f]or crossings where the requirements of 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA." Thus, at crossings where any of the conditions listed in (b)(3) exist, adequate warning devices, if installed using federal funds, are automatic gates and flashing lights. And where the (b)(3) conditions are not present, the decision of what devices to install is subject to FHWA approval. "(D) A combination of high speeds and moderately high volumes of highway and railroad traffic. "(E) Either a high volume of vehicular traffic, high number of train movements, substantial numbers of schoolbuses or trucks carrying hazardous materials, unusually restricted sight distance, continuing accident occurrences, or any combination of these conditions. "(F) A diagnostic team recommends them. "(ii)In individual cases where a diagnostic team justifies that gates are not appropriate, FHWA may find that the above requirements are not applicable. "(4) For crossings where the requirements of 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA." *350 B Shortly after 5 a.m. on October 3, 1993, Eddie Shanklin drove his truck eastward on Oakwood Church Road in Gibson County, Tennessee. App. to Pet. for Cert. 28a. As Shanklin crossed the railroad tracks that intersect the road, he was struck and killed by a train operated by petitioner. At the time of the accident, the Oakwood Church Road crossing was equipped with advance warning signs and reflectorized crossbucks, at 34a, the familiar black-andwhite, X-shaped signs that read "RAILROAD CROSSING," see U. S. Dept. of Transportation, Federal Highway Administration, Manual on Uniform Traffic Control Devices 8B-2 (1988) (MUTCD). The Tennessee Department of Transportation (TDOT) had installed the signs in 1987 with federal funds received under the Crossings Program. App. to Pet. for Cert. 3a. The TDOT had requested the funds as part of a project to install such signs at 196 grade crossings in 11 Tennessee counties. See App. 128-. That request contained information about each crossing covered by the project, including the presence or absence of several of the factors listed in 646.214(b)(3). See The FHWA approved the project, App. to Pet. for Cert. 34a, and federal funds accounted for 99% of the cost of installing the signs at the crossings, see App. 133. It is undisputed that the signs at the Oakwood Church Road crossing were installed and fully compliant with the federal standards for such devices at the time of the accident. Following the accident, Mr. Shanklin's widow, respondent Dedra Shanklin, brought this diversity wrongful death action against petitioner in the United States District Court for the Western District of Tennessee. Respondent's claims were based on Tennessee statutory and common law. She alleged that petitioner had been negligent in several respects, including by failing to maintain adequate warning devices at the crossing. Petitioner moved for summary judgment on the ground that the FRSA *351 pre-empted respondent's suit. App. to Pet. for Cert. 28a. The District Court held that respondent's allegation that the signs installed at the crossing were inadequate was not preempted. at 29a—37a. Respondent thus presented her inadequate warning device claim and three other allegations of negligence to a jury, which found that petitioner and Mr. Shanklin had both been negligent. App. 47. The jury assigned 70% responsibility to petitioner and 30% to Mr. Shanklin, and it assessed damages of $615,379. The District Court accordingly entered judgment of $430,765.30 for respondent. The Court of Appeals for the Sixth Circuit affirmed, holding that the FRSA did not pre-empt respondent's claim that the devices at the crossing were inadequate. It reasoned that federal funding alone is insufficient to trigger pre-emption of state tort actions under the FRSA and 646.214(b)(3) and (4). Instead, the railroad must establish that 646.214(b)(3) or (4) was "applied" to the crossing at issue, meaning that the FHWA affirmatively approved the particular devices installed at the crossing as adequate for safety. The court concluded that, because the TDOT had installed the signs for the purpose of providing "minimum protection" at the Oakwood Church Road crossing, there had been no such individualized determination of adequacy. We granted certiorari, to resolve a conflict among the Courts of Appeals as to whether the FRSA, by virtue of 23 CFR 646.214(b)(3) and (4) pre-empts state tort claims concerning a railroad's failure to maintain adequate warning devices at crossings where federal funds have participated in the installation of the devices. Compare ; ; *352 ; cert. denied, with ; II We previously addressed the pre-emptive effect of the FHWA's regulations implementing the Crossings Program in CSX Transp., In that case, we explained that the language of the FRSA's pre-emption provision dictates that, to pre-empt state law, the federal regulation must "cover" the same subject matter, and not merely "`touch upon' or `relate to' that subject matter." ; see also 49 U.S. C. 20106. Thus, "preemption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Applying this standard, we concluded that the regulations contained in 23 CFR pt. 924 which "establish the general terms of the bargain between the Federal and State Governments" for the Crossings Program, are not We also held that 646.214(b)(1), which requires that all traffic control devices installed under the program comply with the MUTCD, does not pre-empt state tort actions. at 668— 670. The MUTCD "provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between Federal and State Governments and between States and railroads," and hence "disavows any claim to cover the subject matter of that body of law." With respect to 646.214(b)(3) and (4), however, we reached a different conclusion. Because those regulations "establish requirements as to the installation of particular warning devices," we held that "when they are applicable, state tort law is pre-empted." Unlike the other *353 regulations, " 646.214(b)(3) and (4) displace state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." As a result, those regulations "effectively set the terms under which railroads are to participate in the improvement of crossings." In itself, we ultimately concluded that the plaintiff's state tort claim was not pre-empted. As here, the plaintiff brought a wrongful death action alleging that the railroad had not maintained adequate warning devices at a particular grade crossing. We held that 646.214(b)(3) and (4) were not applicable because the warning devices for which federal funds had been obtained were never actually installed at the crossing where the accident occurred. Nonetheless, we made clear that, when they do apply, 646.214(b)(3) and (4) "cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings." The sole question in this case, then, is whether 646.214(b)(3) and (4) "are applicable" to all warning devices actually installed with federal funds. We believe that answers this question as well. As an original matter, one could plausibly read 646.214(b)(3) and (4) as being purely definitional, establishing a standard for the adequacy of federally funded warning devices but not requiring that all such devices meet that standard. rejected this approach, however, and held that the requirements spelled out in (b)(3) and (4) are mandatory for all warning devices installed with federal funds. "[F]or projects that involve grade crossings in which `Federal-aid funds participate in the installation of the [warning] devices,' regulations specify warning devices that must be installed. " Once it is accepted that the regulations are not merely definitional, their scope is plain: They apply to "any project where *354 Federal-aid funds participate in the installation of the devices." 23 CFR 646.214(b)(3)(i) Sections 646.214(b)(3) and (4) therefore establish a standard of adequacy that "determine[s] the devices to be installed" when federal funds participate in the crossing improvement project. 507 U. S., If a crossing presents those conditions listed in (b)(3), the State must install automatic gates and flashing lights; if the (b)(3) factors are absent, (b)(4) dictates that the decision as to what devices to install is subject to FHWA approval. See -671. In either case, 646.214(b)(3) or (4) "is applicable" and determines the type of warning device that is "adequate" under federal law. As a result, once the FHWA has funded the crossing improvement and the warning devices are actually installed and operating, the regulation "displace[s] state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained." Importantly, this is precisely the interpretation of 646.214(b)(3) and (4) that the FHWA endorsed in Appearing as amicus curiae, the Government explained that 646.214(b) "establishes substantive standards for what constitutes adequate safety devices on grade crossing improvement projects financed with federal funds." Brief for United States as Amicus Curiae in CSX Transp., O. T. 1992, Nos. 91-790 and 91-1206, p. 23. As a result, 646.214(b)(3) and (4) "cover the subject matter of adequate safety devices at crossings that have been improved with the use of federal funds." More specifically, the Government stated that 646.214(b) "requires gate arms in certain circumstances, and requires FHWA approval of the safety devices in all other circumstances. Thus, the warning devices in place at a crossing improved with the use of federal funds have, by definition, been specifically found to be adequate under a regulation issued by the Secretary. Any state rule that *355 more or different crossing devices were necessary at a federally funded crossing is therefore preempted." Thus, adopted the FHWA's own understanding of the application of 646.214(b)(3) and (4), a regulation that the agency had been administering for 17 years. Respondent and the Government now argue that 646.214(b)(3) and (4) are more limited in scope and only apply where the warning devices have been selected based on diagnostic studies and particularized analyses of the conditions at the crossing. See Brief for Respondent 16, 24; Brief for United States as Amicus Curiae 22 (hereinafter Brief for United States). They contend that the Crossings Program actually comprises two distinct programs—the "minimum protection" program and the "priority" or "hazard" program. See Brief for Respondent 1-7; Brief for United States 15-21. Under the "minimum protection" program, they argue, States obtain federal funds merely to equip crossings with advance warning signs and reflectorized crossbucks, the bare minimum required by the MUTCD, without any judgment as to whether the signs are adequate. See Brief for Respondent 5-7, 30-36; Brief for United States 15-21. Under the "priority" or "hazard" program, in contrast, diagnostic teams conduct individualized assessments of particular crossings, and state or FHWA officials make specific judgments about the adequacy of the warning devices using the criteria set out in 646.214(b)(3). See Brief for Respondent 5-7, 34-35; Brief for United States 18-21. They therefore contend that (b)(3) and (4) only apply to devices installed under the "priority" or "hazard" program, when a diagnostic team has actually applied the decisional process mandated by (b)(3). See Brief for Respondent 16; Brief for United States 18-25. Only then has the regulation prescribed a federal standard for the adequacy of the warning devices that displaces state law covering the same subject. *356 This construction, however, contradicts the regulation's plain text. Sections 646.214(b)(3) and (4) make no distinction between devices installed for "minimum protection" and those installed under a so-called "priority" or "hazard" program. Nor does their applicability depend on any individualized determination of adequacy by a diagnostic team or an FHWA official. Rather, as the FHWA itself explained in its brief, 646.214(b)(3) and (4) have a "comprehensive scope." Brief for United States in CSX Transp., O. T. 1992, Nos. 91-790 and 91-1206, at 12. Section 646.214(b)(3) states that its requirements apply to "any project where Federal-aid funds participate in the installation of the devices." 23 CFR 646.214(b)(3)(i) And 646.214(b)(4) applies to all federally funded crossings that do not meet the criteria specified in (b)(3). Either way, the federal standard for adequacy applies to the crossing improvement and "substantially subsume[s] the subject matter of the relevant state law." 507 U. S., Thus, contrary to the Government's position here, 646.214(b)(3) and (4) "specify warning devices that must be installed" as a part of all federally funded crossing improvements. Although generally "an agency's construction of its own regulations is entitled to substantial deference," no such deference is appropriate here. Not only is the FHWA's interpretation inconsistent with the text of 646.214(b)(3) and (4), see but it also contradicts the agency's own previous construction that this Court adopted as authoritative in cf. Maislin Industries, U. S., *357 The dissent contends that, under our holding, state law is pre-empted even though "[n]o authority, federal or state, has found that the signs in place" are "adequate to protect safety." Post, at 360 (opinion of Ginsburg, J.). This presupposes that States have not fulfilled their obligation to comply with 646.214(b)(3) and (4). Those subsections establish a standard for adequacy that States are required to follow in determining what devices to install when federal funds are used. The dissent also argues that did not hold that federal funding of the devices is "sufficient" to effect pre-emption, and that "any statement as to the automatic preemptive effect of federal funding should have remained open for reconsideration in a later case." Post, at 361. But did not, in fact, leave this question open. Instead, at the behest of the FHWA, the Court clearly stated that 646.214(b)(3) and (4) pre-empt state tort claims concerning the adequacy of all warning devices installed with the participation of federal funds. Respondent also argues that pre-emption does not lie in this particular case because the Oakwood Church Road crossing presented several of the factors listed in 646.214(b)(3), and because the TDOT did not install pavement markings as required by the MUTCD. See Brief for Respondent 20-22, 36; Brief in Opposition 6-8. This misconceives how pre-emption operates under these circumstances. When the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject. At that point, the regulation dictates "the devices to be installed and the means by which railroads are to participate in their selection." It is this displacement of state law concerning the devices' adequacy, and not the State's or the FHWA's adherence to the standard set out in 646.214(b)(3) and (4) or to the requirements of the *358 MUTCD, that pre-empts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have since changed such that automatic gates and flashing lights would be appropriate, is immaterial to the pre-emption question. It should be noted that nothing prevents a State from revisiting the adequacy of devices installed using federal funds. States are free to install more protective devices at such crossings with their own funds or with additional funding from the FHWA. What States cannot do—once they have installed federally funded devices at a particular crossing— is hold the railroad responsible for the adequacy of those devices. The dissent objects that this bestows on railroads a "double windfall": The Federal Government pays for the installation of the devices, and the railroad is simultaneously absolved of state tort liability. Post, at 360-361. But the same is true of the result urged by respondent and the Government. Respondent and the Government acknowledge that 646.214(b)(3) and (4) can pre-empt state tort law, but they argue that pre-emption only occurs when the State has installed the devices pursuant to a diagnostic team's analysis of the crossing in question. Under this reading, railroads would receive the same "double windfall"—federal funding of the devices and pre-emption of state tort law—so long as a diagnostic team has evaluated the crossing. The supposed conferral of a "windfall" on the railroads therefore casts no doubt on our construction of the regulation. Sections 646.214(b)(3) and (4) "cover the subject matter" of the adequacy of warning devices installed with the participation of federal funds. As a result, the FRSA pre-empts respondent's state tort claim that the advance warning signs and reflectorized crossbucks installed at the Oakwood Church Road crossing were inadequate. Because the TDOT used federal funds for the signs' installation, 646.214(b)(3) and (4) governed the selection and installation of the devices. And because the TDOT determined that warning devices * other than automatic gates and flashing lights were appropriate, its decision was subject to the approval of the FHWA. See 646.214(b)(4). Once the FHWA approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject, thereby preempting respondent's claim. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Breyer

concurring

Norfolk Southern R. Co. v. Shanklin

2000-04-17

https://www.courtlistener.com/opinion/118355/norfolk-southern-r-co-v-shanklin/

https://www.courtlistener.com/api/rest/v3/clusters/118355/

1999-047

I agree with Justice Ginsburg that "common sense and sound policy" suggest that federal minimum safety standards should not pre-empt a state tort action claiming that in the particular circumstance a railroad's warning device remains inadequate. Post, at 360 (dissenting opinion). But the Federal Government has the legal power to do more. And, as the majority points out, ante, at 353-356, the specific Federal Highway Administration regulations at issue here do, in fact, do more—when read in light of CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993), which faithfully replicates the Government's own earlier interpretation. So read, they say that once federal funds are requested and spent to install warning devices at a grade crossing, the regulations' standards of adequacy apply across the board and pre-empt state law seeking to impose an independent duty on a railroad with respect to the adequacy of warning devices installed. Id., at 671; ante, at 357. I see no need here to reconsider the relevant language in this Court's earlier opinion because the Government itself can easily avoid the pre-emption that it previously sought. It can simply change the relevant regulations, for example, by specifying that federal money is sometimes used for "minimum," not "adequate," programs, which minimum programs lack pre-emptive force. The *360 agency remains free to amend its regulations to achieve the commonsense result that the Government itself now seeks. With that understanding, I join the majority's opinion.

I agree with Justice Ginsburg that "common sense and sound policy" suggest that federal minimum safety standards should not pre-empt a state tort action claiming that in the particular circumstance a railroad's warning device remains inadequate. Post, at 360 (dissenting opinion). But the Federal Government has the legal power to do more. And, as the majority points out, ante, at 353-356, the specific Federal Highway Administration regulations at issue here do, in fact, do more—when read in light of CSX Transp., which faithfully replicates the Government's own earlier interpretation. So read, they say that once federal funds are requested and spent to install warning devices at a grade crossing, the regulations' standards of adequacy apply across the board and pre-empt state law seeking to impose an independent duty on a railroad with respect to the adequacy of warning devices installed. ; ante, at 357. I see no need here to reconsider the relevant language in this Court's earlier opinion because the Government itself can easily avoid the pre-emption that it previously sought. It can simply change the relevant regulations, for example, by specifying that federal money is sometimes used for "minimum," not "adequate," programs, which minimum programs lack pre-emptive force. The *360 agency remains free to amend its regulations to achieve the commonsense result that the Government itself now seeks. With that understanding, I join the majority's opinion.

Justice Ginsburg

dissenting

Norfolk Southern R. Co. v. Shanklin

2000-04-17

https://www.courtlistener.com/opinion/118355/norfolk-southern-r-co-v-shanklin/

https://www.courtlistener.com/api/rest/v3/clusters/118355/

1999-047

A fatal accident occurred on October 3, 1993, at a railroad crossing in Gibson County, Tennessee. The crossing was equipped not with automatic gates or flashing lights, but only with basic warning signs installed with federal funds provided under the Federal Railway-Highway Crossings Program. See 23 U.S. C. § 130. This federal program aimed to ensure that States would, "[a]t a minimum, . . . provide signs for all railway-highway crossings." § 130(d). No authority, federal or state, has found that the signs in place at the scene of the Gibson County accident were adequate to protect safety, as distinguished from being a bare minimum. Nevertheless, the Court today holds that wholesale federal funding of improvements at 196 crossings throughout 11 west Tennessee counties preempts all state regulation of safety devices at each individual crossing. As a result, respondent Dedra Shanklin cannot recover under state tort law for the railroad's failure to install adequate devices. And the State of Tennessee, because it used federal money to provide at least minimum protection, is stopped from requiring the installation of adequate devices at any of the funded crossings. The upshot of the Court's decision is that state negligence law is displaced with no substantive federal standard of conduct to fill the void. That outcome defies common sense and sound policy. Federal regulations already provide that railroads shall not be required to pay any share of the cost of federally financed grade crossing improvements. 23 CFR § 646.210(b)(1) (1999). Today the railroads have achieved a double windfall: the Federal Government foots the bill for installing safety devices; and that same federal expenditure *361 spares the railroads from tort liability, even for the inadequacy of devices designed only to secure the "minimum" protection Congress envisioned for all crossings. See 23 U.S. C. § 130(d). Counsel for petitioner Norfolk Southern Railway correctly conceded at oral argument that the relevant statutes do not compel releasing the railroads when the devices installed, though meeting federal standards for "minimum" protection, see ante, at 350, fail to provide adequate protection. The road is open for the Secretary of Transportation to enact regulations clarifying that point. See ante, at 359-360 (Breyer, J., concurring). As persuasively explained by the Court of Appeals for the Seventh Circuit in Shots v. CSX Transp., Inc., 38 F.3d 304 (1994) (Posner, C. J.), and reiterated by the Court of Appeals for the Sixth Circuit in the instant case, 173 F.3d 386 (1999), our prior decision in CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993), does not necessitate the ouster of state law the Court now commands. Easterwood, in which the tort claimant prevailed, dispositively held only that federal funding was necessary to trigger preemption, not that it was sufficient by itself to do so. Because federal funds did not in fact subsidize the crossing at issue in that case, id., at 671-673, any statement as to the automatic preemptive effect of federal funding should have remained open for reconsideration in a later case where federal funds did participate. I do not read the admittedly unclear language of 23 CFR §§ 646.214(b)(3) and (4) (1999) to dictate that Federal Highway Administration authorization of federal funding to install devices is tantamount to approval of each of those devices as adequate to protect safety at every crossing so funded. And I do not think a previous administration's argument to that effect as amicus curiae in Easterwood estops the Government from taking a different view now. I agree with the sound reasoning in Shots and would affirm the Court of Appeals' judgment.

A fatal accident occurred on October 3, 1993, at a railroad crossing in Gibson County, Tennessee. The crossing was equipped not with automatic gates or flashing lights, but only with basic warning signs installed with federal funds provided under the Federal Railway-Highway Crossings Program. See 23 U.S. C. 130. This federal program aimed to ensure that States would, "[a]t a minimum, provide signs for all railway-highway crossings." 130(d). No authority, federal or state, has found that the signs in place at the scene of the Gibson County accident were adequate to protect safety, as distinguished from being a bare minimum. Nevertheless, the Court today holds that wholesale federal funding of improvements at 196 crossings throughout 11 west Tennessee counties preempts all state regulation of safety devices at each individual crossing. As a result, respondent Dedra Shanklin cannot recover under state tort law for the railroad's failure to install adequate devices. And the State of Tennessee, because it used federal money to provide at least minimum protection, is stopped from requiring the installation of adequate devices at any of the funded crossings. The upshot of the Court's decision is that state negligence law is displaced with no substantive federal standard of conduct to fill the void. That outcome defies common sense and sound policy. Federal regulations already provide that railroads shall not be required to pay any share of the cost of federally financed grade crossing improvements. 23 CFR 646.210(b)(1) Today the railroads have achieved a double windfall: the Federal Government foots the bill for installing safety devices; and that same federal expenditure *361 spares the railroads from tort liability, even for the inadequacy of devices designed only to secure the "minimum" protection Congress envisioned for all crossings. See 23 U.S. C. 130(d). Counsel for petitioner Norfolk Southern Railway correctly conceded at oral argument that the relevant statutes do not compel releasing the railroads when the devices installed, though meeting federal standards for "minimum" protection, see ante, at 350, fail to provide adequate protection. The road is open for the Secretary of Transportation to enact regulations clarifying that point. See ante, at 359-360 (Breyer, J., concurring). As persuasively explained by the Court of Appeals for the Seventh Circuit in and reiterated by the Court of Appeals for the Sixth Circuit in the instant case, our prior decision in CSX Transp., does not necessitate the ouster of state law the Court now commands. Easterwood, in which the tort claimant prevailed, dispositively held only that federal funding was necessary to trigger preemption, not that it was sufficient by itself to do so. Because federal funds did not in fact subsidize the crossing at issue in that case, any statement as to the automatic preemptive effect of federal funding should have remained open for reconsideration in a later case where federal funds did participate. I do not read the admittedly unclear language of 23 CFR 646.214(b)(3) and (4) to dictate that Federal Highway Administration authorization of federal funding to install devices is tantamount to approval of each of those devices as adequate to protect safety at every crossing so funded. And I do not think a previous administration's argument to that effect as amicus curiae in Easterwood estops the Government from taking a different view now. I agree with the sound reasoning in Shots and would affirm the Court of Appeals' judgment.

Justice Rehnquist

majority

Syngenta Crop Protection, Inc. v. Henson

2002-11-05

https://www.courtlistener.com/opinion/122244/syngenta-crop-protection-inc-v-henson/

https://www.courtlistener.com/api/rest/v3/clusters/122244/

2002-005

Respondent Hurley Henson filed suit in state court in Iberville Parish, Louisiana, against petitioner Syngenta Crop Protection, Inc. (then known as Ciba-Geigy Corp.) asserting various tort claims related to petitioners' manufacture and sale of a chlordimeform-based insecticide. A similar action, Price v. Ciba-Geigy Corp., was already underway in the United States District Court for the Southern District of Alabama. The Louisiana court stayed respondent's action when respondent successfully intervened in the Price suit and participated in the ensuing settlement. That settlement included a stipulation that the Henson action, "including any and all claims . . . against [petitioners], shall be dismissed, with prejudice," as of the approval date. App. 38a; see also id., at 36a. Following the approval of the settlement, the Louisiana state court conducted a hearing to determine whether the Henson action should be dismissed. Counsel for respondent told the court that the Price settlement required dismissal of only some of the claims raised in Henson. Although this representation appeared to be contrary to the terms of the settlement agreement, the Louisiana court relied upon it and invited respondent to amend the complaint and proceed with the action. Counsel for petitioners did not attend the hearing. Upon learning of the state court's action, however, petitioners promptly removed the action to the Middle District of Louisiana, relying on 28 U.S.C. § 1441(a). The notice of removal asserted federal jurisdiction under the All Writs Act, § 1651, and under the supplemental jurisdiction statute, § 1367. The Middle District of Louisiana granted a transfer to the Southern District of Alabama pursuant to § 1404(a), and the Alabama court then dismissed Henson as barred by the Price settlement and sanctioned respondent's counsel for his misrepresentation to the Louisiana state court. *31 The Court of Appeals for the Eleventh Circuit affirmed the sanctions but vacated the District Court's order dismissing the Henson action. Henson v. Ciba-Geigy Corp., 261 F.3d 1065 (2001). The court reasoned that § 1441 by its terms authorizes removal only of actions over which the district courts have original jurisdiction. But the All Writs Act authorizes writs "in aid of [the courts'] respective jurisdictions" without providing any federal subject-matter jurisdiction in its own right, see, e.g., Clinton v. Goldsmith, 526 U.S. 529, 534-535 (1999). Therefore, the Court of Appeals concluded, the All Writs Act could not support removal of the Henson action from state to federal court. In so holding, the Court of Appeals recognized that several Circuits have held that the All Writs Act gives a federal court the authority to remove a state-court case in order to prevent the frustration of orders the federal court has previously issued. See, e.g., Xiong v. Minnesota, 195 F.3d 424, 426 (CA8 1999); Bylinski v. Allen Park, 169 F.3d 1001, 1003 (CA6 1999); In re Agent Orange Product Liability Litigation, 996 F.2d 1425, 1431 (CA2 1993). It noted, however, that other Circuits have agreed with its conclusion that the All Writs Act does not furnish removal jurisdiction. See, e.g., Hillman v. Webley, 115 F.3d 1461, 1469 (CA10 1997). We granted certiorari to resolve this controversy, 534 U.S. 1126 (2001), and now affirm. The All Writs Act, 28 U.S.C. § 1651(a), provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Petitioners advance two arguments in support of their claim that removal of the Henson action was proper under the All Writs Act: (1) The All Writs Act authorized removal of the Henson action, and (2) the All Writs Act in conjunction with the doctrine of ancillary enforcement jurisdiction authorized the removal. We address these contentions in turn. *32 First, petitioners, like the courts that have endorsed "All Writs removal," rely upon our statement in United States v. New York Telephone Co., 434 U.S. 159, 172 (1977), that the Act authorizes a federal court "to issue such commands . . . as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." Petitioners also cite Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 41 (1985), for the proposition that the All Writs Act "fill[s] the interstices of federal judicial power when those gaps threate[n] to thwart the otherwise proper exercise of federal courts' jurisdiction." They argue that the Act comes into play here because maintenance of the Henson action in state court in Louisiana frustrated the express terms of the Price settlement, which required that "any and all claims" in Henson be dismissed. But Pennsylvania Bureau made clear that "[w]here a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." 474 U.S., at 43. The right of removal is entirely a creature of statute and "a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress." Great Northern R. Co. v. Alexander, 246 U.S. 276, 280 (1918) (citing Gold-Washing and Water Co. v. Keyes, 96 U.S. 199, 201 (1878)). These statutory procedures for removal are to be strictly construed. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941) (noting that policy underlying removal statutes "is one calling for the strict construction of such legislation"); Healy v. Ratta, 292 U.S. 263, 270 (1934) ("Due regard for the rightful independence of state governments . . . requires that [federal courts] scrupulously confine their own jurisdiction to the precise limits which the statute has defined"); Matthews v. Rodgers, 284 U.S. 521, 525 (1932); Kline v. Burke Constr. Co., 260 U.S. 226, 233-234 (1922). Petitioners may not, by resorting to the All Writs Act, avoid complying with *33 the statutory requirements for removal. See Pennsylvania Bureau, supra, at 43 (All Writs Act "does not authorize [federal courts] to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate"). Petitioners' question presented to this Court suggests a variation on this first argument, asking whether the All Writs Act "vests federal district courts with authority to exercise removal jurisdiction under 28 U.S.C. § 1441." Pet. for Cert. i (emphasis added). The general removal statute, 28 U.S.C. § 1441, provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending," unless Congress specifically provides otherwise. § 1441(a). Under the plain terms of § 1441(a), in order properly to remove the Henson action pursuant to that provision, petitioners must demonstrate that original subject-matter jurisdiction lies in the federal courts. They concede that the All Writs Act "does not, by its specific terms, provide federal courts with an independent grant of jurisdiction." Brief for Petitioners 9; see also Clinton, supra, at 534-535 (express terms of the All Writs Act confine a court "to issuing process `in aid of' its existing statutory jurisdiction; the Act does not enlarge that jurisdiction"). Because the All Writs Act does not confer jurisdiction on the federal courts, it cannot confer the original jurisdiction required to support removal pursuant to § 1441. Second, petitioners contend that some combination of the All Writs Act and the doctrine of ancillary enforcement jurisdiction support the removal of the Henson action. As we explained in Peacock v. Thomas, 516 U.S. 349, 355 (1996), "[a]ncillary jurisdiction may extend to claims having a factual and logical dependence on `the primary lawsuit.'" Petitioners emphasize that the Southern District of Alabama retained *34 jurisdiction over the Price settlement, thus distinguishing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994), in which we found ancillary jurisdiction lacking. They argue that respondent's maintenance of the Henson action undermined the Price settlement and that, in light of the Alabama court's retained jurisdiction, ancillary enforcement jurisdiction was necessary and appropriate.[*] But they fail to explain how the Alabama District Court's retention of jurisdiction over the Price settlement authorized removal of the Henson action. Removal is governed by statute, and invocation of ancillary jurisdiction, like invocation of the All Writs Act, does not dispense with the need for compliance with statutory requirements. Read in light of the question presented in the petition for certiorari, perhaps petitioners' argument is that ancillary jurisdiction authorizes removal under 28 U.S.C. § 1441. As we explained in Peacock, however, a "court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims." 516 U.S., at 355. Ancillary jurisdiction, therefore, cannot provide the original jurisdiction that petitioners must show in order to qualify for removal under § 1441. Section 1441 requires that a federal court have original jurisdiction over an action in order for it to be removed from a state court. The All Writs Act, alone or in combination with the existence of ancillary jurisdiction in a federal court, is not a substitute for that requirement. Accordingly, the judgment of the Court of Appeals is Affirmed.

Respondent Hurley Henson filed suit in state court in Iberville Parish, Louisiana, against petitioner Syngenta Crop Protection, Inc. (then known as Ciba-Geigy Corp.) asserting various tort claims related to petitioners' manufacture and sale of a chlordimeform-based insecticide. A similar action, Price v. Ciba-Geigy Corp., was already underway in the United States District Court for the Southern District of Alabama. The Louisiana court stayed respondent's action when respondent successfully intervened in the Price suit and participated in the ensuing settlement. That settlement included a stipulation that the Henson action, "including any and all claims against [petitioners], shall be dismissed, with prejudice," as of the approval date. App. 38a; see also at 36a. Following the approval of the settlement, the Louisiana state court conducted a hearing to determine whether the Henson action should be dismissed. Counsel for respondent told the court that the Price settlement required dismissal of only some of the claims raised in Henson. Although this representation appeared to be contrary to the terms of the settlement agreement, the Louisiana court relied upon it and invited respondent to amend the complaint and proceed with the action. Counsel for petitioners did not attend the hearing. Upon learning of the state court's action, however, petitioners promptly removed the action to the Middle District of Louisiana, relying on (a). The notice of removal asserted federal jurisdiction under the All Writs Act, 1651, and under the supplemental jurisdiction statute, 1367. The Middle District of Louisiana granted a transfer to the Southern District of Alabama pursuant to 1404(a), and the Alabama court then dismissed Henson as barred by the Price settlement and sanctioned respondent's counsel for his misrepresentation to the Louisiana state court. *31 The Court of Appeals for the Eleventh Circuit affirmed the sanctions but vacated the District Court's order dismissing the Henson action. The court reasoned that 14 by its terms authorizes removal only of actions over which the district courts have original jurisdiction. But the All Writs Act authorizes writs "in aid of [the courts'] respective jurisdictions" without providing any federal subject-matter jurisdiction in its own right, see, e.g., Therefore, the Court of Appeals concluded, the All Writs Act could not support removal of the Henson action from state to federal court. In so holding, the Court of Appeals recognized that several Circuits have held that the All Writs Act gives a federal court the authority to remove a state-court case in order to prevent the frustration of orders the federal court has previously issued. See, e.g., ; ; In re Agent Orange Product Liability Litigation, It noted, however, that other Circuits have agreed with its conclusion that the All Writs Act does not furnish removal jurisdiction. See, e.g., We granted certiorari to resolve this controversy, and now affirm. The All Writs Act, 28 U.S.C. 1651(a), provides that "[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Petitioners advance two arguments in support of their claim that removal of the Henson action was proper under the All Writs Act: (1) The All Writs Act authorized removal of the Henson action, and (2) the All Writs Act in conjunction with the doctrine of ancillary enforcement jurisdiction authorized the removal. We address these contentions in turn. *32 First, petitioners, like the courts that have endorsed "All Writs removal," rely upon our statement in United that the Act authorizes a federal court "to issue such commands as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." Petitioners also cite Pennsylvania of for the proposition that the All Writs Act "fill[s] the interstices of federal judicial power when those gaps threate[n] to thwart the otherwise proper exercise of federal courts' jurisdiction." They argue that the Act comes into play here because maintenance of the Henson action in state court in Louisiana frustrated the express terms of the Price settlement, which required that "any and all claims" in Henson be dismissed. But Pennsylvania made clear that "[w]here a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." The right of removal is entirely a creature of statute and "a suit commenced in a state court must remain there until cause is shown for its transfer under some act of Congress." Great Northern R. These statutory procedures for removal are to be strictly construed. See, e.g., Shamrock Oil & Gas (19) ; ; ; Petitioners may not, by resorting to the All Writs Act, avoid complying with *33 the statutory requirements for removal. See Pennsylvania Petitioners' question presented to this Court suggests a variation on this first argument, asking whether the All Writs Act "vests federal district courts with authority to exercise removal jurisdiction under" Pet. for Cert. i (emphasis added). The general removal statute, provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending," unless Congress specifically provides otherwise. 14(a). Under the plain terms of 14(a), in order properly to remove the Henson action pursuant to that provision, petitioners must demonstrate that original subject-matter jurisdiction lies in the federal courts. They concede that the All Writs Act "does not, by its specific terms, provide federal courts with an independent grant of jurisdiction." Brief for Petitioners 9; see also at Because the All Writs Act does not confer jurisdiction on the federal courts, it cannot confer the original jurisdiction required to support removal pursuant to 14. Second, petitioners contend that some combination of the All Writs Act and the doctrine of ancillary enforcement jurisdiction support the removal of the Henson action. As we explained in "[a]ncillary jurisdiction may extend to claims having a factual and logical dependence on `the primary lawsuit.'" Petitioners emphasize that the Southern District of Alabama retained *34 jurisdiction over the Price settlement, thus distinguishing in which we found ancillary jurisdiction lacking. They argue that respondent's maintenance of the Henson action undermined the Price settlement and that, in light of the Alabama court's retained jurisdiction, ancillary enforcement jurisdiction was necessary and appropriate.[*] But they fail to explain how the Alabama District Court's retention of jurisdiction over the Price settlement authorized removal of the Henson action. Removal is governed by statute, and invocation of ancillary jurisdiction, like invocation of the All Writs Act, does not dispense with the need for compliance with statutory requirements. Read in light of the question presented in the petition for certiorari, perhaps petitioners' argument is that ancillary jurisdiction authorizes removal under As we explained in Peacock, however, a "court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims." 516 U.S., at Ancillary jurisdiction, therefore, cannot provide the original jurisdiction that petitioners must show in order to qualify for removal under 14. Section 14 requires that a federal court have original jurisdiction over an action in order for it to be removed from a state court. The All Writs Act, alone or in combination with the existence of ancillary jurisdiction in a federal court, is not a substitute for that requirement. Accordingly, the judgment of the Court of Appeals is Affirmed.

Justice Stevens

concurring

Syngenta Crop Protection, Inc. v. Henson

2002-11-05

https://www.courtlistener.com/opinion/122244/syngenta-crop-protection-inc-v-henson/

https://www.courtlistener.com/api/rest/v3/clusters/122244/

2002-005

As the Court acknowledges, ante, at 32, the decisions of the Courts of Appeals that we disapprove today have relied in large part on our decision in United States v. New York Telephone Co., 434 U.S. 159 (1977).[*] For the reasons stated in Part II of my dissenting opinion in that case—reasons that are echoed in the Court's opinion today—I believe that it clearly misconstrued the All Writs Act. Id., at 186-190 (opinion dissenting in part). See also id., at 178 (Stewart, J., concurring in part and dissenting in part). Because the overly expansive interpretation given to the All Writs Act in New York Telephone may produce further mischief, I would expressly overrule that misguided decision. With these observations, I join the Court's opinion.

As the Court acknowledges, ante, at 32, the decisions of the Courts of Appeals that we disapprove today have relied in large part on our decision in United[*] For the reasons stated in Part II of my dissenting opinion in that case—reasons that are echoed in the Court's opinion today—I believe that it clearly misconstrued the All Writs Act. See also Because the overly expansive interpretation given to the All Writs Act in New York Telephone may produce further mischief, I would expressly overrule that misguided decision. With these observations, I join the Court's opinion.

Justice Ginsburg

majority

BNSF R. Co. v. Loos

2019-03-04

https://www.courtlistener.com/opinion/4595943/bnsf-r-co-v-loos/

https://www.courtlistener.com/api/rest/v3/clusters/4595943/

Respondent Michael Loos was injured while working at petitioner BNSF Railway Company’s railyard. Loos sued BNSF under the Federal Employers’ Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S. C. §51 et seq., and gained a $126,212.78 jury verdict. Of that amount the jury as- cribed $30,000 to wages lost during the time Loos was unable to work. BNSF moved for an offset against the judgment. The lost wages awarded Loos, BNSF asserted, constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA), 26 U.S. C. §3201 et seq. Therefore, BNSF urged, the railway was required to with- hold a portion of the $30,000 attributable to lost wages to cover Loos’s share of RRTA taxes, which came to $3,765. The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on-the-job injury taxable “compensation” under the RRTA, 26 U.S. C. 2 BNSF R. CO. v. LOOS Opinion of the Court §3231(e)(1)? We granted review to resolve a division of opinion on the answer to that question. 584 U. S. ___ (2018). Compare Hance v. Norfolk S. R. Co., 571 F.3d 511, 523 (CA6 2009) (“compensation” includes pay for time lost); Phillips v. Chicago Central & Pacific R. Co., 853 N.W.2d 636, 650–651 (Iowa 2014) (agency reasonably interpreted “compensation” as including pay for time lost); Heckman v. Burlington N. Santa Fe R. Co., 286 Neb. 453, 463, 837 N.W.2d 532, 540 (2013) (“compensation” in- cludes pay for time lost), with 865 F.3d 1106, 1117–1118 (CA8 2017) (case below) (“compensation” does not include pay for time lost); Mickey v. BNSF R. Co., 437 S.W.3d 207, 218 (Mo. 2014) (“compensation” does not include FELA damages for lost wages). We now hold that an award compensating for lost wages is subject to taxation under the RRTA. I In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The system provides generous pensions as well as benefits “correspon[ding] . . . to those an employee would expect to receive were he covered by the Social Security Act.” Hisquierdo v. His- quierdo, 439 U.S. 572, 575 (1979). Two statutes operate in concert to ensure that retired railroad workers receive their allotted pensions and bene- fits. The first, the RRTA, funds the program by imposing a payroll tax on both railroads and their employees. The RRTA refers to the railroad’s contribution as an “excise” tax, 26 U.S. C. §3221, and describes the employee’s share as an “income” tax, §3201. Congress assigned to the In- ternal Revenue Service (IRS) responsibility for collecting both taxes. §§3501, 7801.1 The second statute, the Rail- —————— 1 The railroad remits both taxes to the IRS. As to the income tax, the Cite as: 586 U. S. ____ (2019) 3 Opinion of the Court road Retirement Act (RRA), 50 Stat. 307, as restated and amended, 45 U.S. C. §231 et seq., entitles railroad work- ers to various benefits and prescribes eligibility require- ments. The RRA is administered by the Railroad Retire- ment Board. See §231f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U.S. C. §§3201, 3221; 45 U.S. C. §231b. The RRTA and RRA separately define “compensation,” but both statutes state that the term means “any form of money remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. §3231(e)(1); 45 U.S. C. §231(h)(1). This language has remained basically unchanged since the RRTA’s enactment in 1937. See Carriers Taxing Act of 1937 (1937 RRTA), §1(e), 50 Stat. 436 (defining “compen- sation” as “any form of money remuneration earned by an individual for services rendered as an employee”). The RRTA excludes from “compensation” certain types of sick pay and disability pay. See 26 U.S. C. §3231(e)(1), (4)(A). The IRS’s reading of the word “compensation” as it appears in the RRTA has remained constant. One year after the RRTA’s adoption, the IRS stated that “compensa- tion” is not limited to pay for active service but reaches, as well, pay for periods of absence. See 26 CFR §410.5 (1938). This understanding has governed for more than eight decades. As restated in the current IRS regulations, “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identi- fiable period during which the employee is absent from the active service of the employer.” §31.3231(e)–1(a)(3) (2017). —————— railroad deducts the amount owed by the employee from her earnings and then forwards that amount to the IRS. See Tr. of Oral Arg. 22–23. See also 26 U.S. C. §3402(a)(1) (employers must “deduct and withhold” income taxes from earnings). 4 BNSF R. CO. v. LOOS Opinion of the Court In 1994, the IRS added, specifically, that “compensation” includes “pay for time lost.” §31.3231(e)–1(a)(4); see 59 Fed. Reg. 66188 (1994). Congress created both the railroad retirement system and the Social Security system during the Great Depres- sion primarily to ensure the financial security of members of the workforce when they reach old age. See Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 1); Helvering v. Davis, 301 U.S. 619, 641 (1937). Given the similarities in timing and purpose of the two programs, it is hardly surprising that their statutory foundations mirror each other. Regarding Social Security, the Federal Insurance Contributions Act (FICA), 26 U.S. C. §3101 et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), 49 Stat. 620, as amended, 42 U.S. C. §301 et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” See Davis, 301 U.S., at 635–636. Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compen- sation.” “Wages” under the FICA and the SSA mean “all remuneration for employment,” and “employment,” in turn, means “any service, of whatever nature, performed . . . by an employee.” 26 U.S. C. §3121(a)–(b) (FICA); see 42 U.S. C. §§409(a), 410(a) (SSA). Reading these pre- scriptions together, the term “wages” encompasses “all remuneration” for “any service, of whatever nature, per- formed . . . by an employee.” Ibid. II A To determine whether RRTA-qualifying “compensation” includes an award of damages for lost wages, we begin Cite as: 586 U. S. ____ (2019) 5 Opinion of the Court with the statutory text.2 The RRTA defines “compensa- tion” as “remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. §3231(e)(1). This definition, as just noted, is materially indistinguishable from the FICA’s definition of “wages” to include “remuner- ation” for “any service, of whatever nature, performed . . . by an employee.” §3121. Given the textual similarity between the definitions of “compensation” for railroad retirement purposes and “wages” for Social Security purposes, our decisions on the meaning of “wages” in Social Security Bd. v. Nierotko, 327 U.S. 358 (1946), and United States v. Quality Stores, Inc., 572 U.S. 141 (2014), inform our comprehension of the RRTA term “compensation.” In Nierotko, the National Labor Relations Board found that an employee had been “wrongfully discharged for union activity” and awarded him backpay. 327 U.S., at 359. The Social Security Board refused to credit the backpay award in calculating the employee’s benefits. Id., at 365–366. In the Board’s view, “wages” covered only pay for active service. Ibid. We disagreed. Emphasizing that the phrase “any service . . . performed” denotes “breadth of coverage,” we held that “wages” means remuneration for “the entire employer- employee relationship”; in other words, “wages” embraced pay for active service plus pay received for periods of absence from active service. Id., at 366. Backpay, we —————— 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure on injured workers to settle their claims. Post, at 3. Contrast with the dissent’s conjecture, BNSF’s entirely plausible account of a railroad’s stake in this dispute. Because the RRA credits lost wages toward an employee’s benefits, see 45 U.S. C. §231(h)(1), BNSF posits that immunizing those payments from RRTA taxes would expose the system to “a long-term risk of insolvency.” Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14. 6 BNSF R. CO. v. LOOS Opinion of the Court reasoned, counts as “wages” because it compensates for “the loss of wages which the employee suffered from the employer’s wrong.” Id., at 364. In Quality Stores, we again trained on the meaning of “wages,” reiterating that “Congress chose to define wages . . . broadly.” 572 U.S., at 146 (internal quotation marks omitted). Guided by Nierotko, Quality Stores held that severance payments qualified as “wages” taxable under the FICA. “[C]ommon sense,” we observed, “dictates that employees receive th[ose] payments ‘for employment.’ ” 572 U.S., at 146. Severance payments, the Court spelled out, “are made to employees only,” “are made in considera- tion for employment,” and are calculated “according to the function and seniority of the [terminated] employee.” Id., at 146–147. In line with Nierotko, Quality Stores, and the IRS’s long held construction, we hold that “compensation” under the RRTA encompasses not simply pay for active service but, in addition, pay for periods of absence from active ser- vice—provided that the remuneration in question stems from the “employer-employee relationship.” Nierotko, 327 U.S., at 366. B Damages awarded under the FELA for lost wages fit comfortably within this definition. The FELA “makes railroads liable in money damages to their employees for on-the-job injuries.” BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___ (2017) (slip op., at 1); see 45 U.S. C. §51. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for, inter alia, working time lost due to the employer’s wrongdoing. FELA dam- ages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully Cite as: 586 U. S. ____ (2019) 7 Opinion of the Court separated from his job.” Nierotko, 327 U.S., at 364. Just as Nierotko held that backpay falls within the definition of “wages,” ibid., we conclude that FELA damages for lost wages qualify as “compensation” and are therefore taxable under the RRTA. III A The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for “services that an employee actually renders,” in other words, pay for active service. Consequently, the court held that “compensation” within the RRTA’s compass did not reach pay for periods of ab- sence. 865 F.3d, at 1117. In so ruling, the Court of Ap- peals attempted to distinguish Nierotko and Quality Stores. The Social Security decisions, the court said, were inapposite because the FICA “taxes payment for ‘employ- ment,’ ” whereas the RRTA “tax[es] payment for ‘services.’ ” 865 F.3d, at 1117. As noted, however, supra, at 3–4, the FICA defines “employment” in language resembling the RRTA in all relevant respects. Compare 26 U.S. C. §3121(b) (FICA) (“any service, of whatever nature, per- formed . . . by an employee”) with §3231(e)(1) (RRTA) (“services rendered as an employee”). Construing RRTA “compensation” as less embracive than “wages” covered by the FICA would introduce an unwarranted disparity between terms Congress appeared to regard as equiva- lents. The reasoning of Nierotko and Quality Stores, as we see it, resists the Eighth Circuit’s swift writeoff.3 Nierotko and Quality Stores apart, we would in any event conclude that the RRTA term “compensation” covers —————— 3 The dissent’s reduction of Nierotko’s significance fares no better. Nierotko, the dissent urges, is distinguishable because it involved “a different factual context.” Post, at 7. But as just explained, supra, at 6–7, the facts in Nierotko resemble those here in all material respects. 8 BNSF R. CO. v. LOOS Opinion of the Court pay for time lost. Restricting “compensation” to pay for active service, the Court of Appeals relied on statutory history and, in particular, the eventual deletion of two references to pay for time lost contained in early rendi- tions of the RRTA. See also post, at 6–7 (presenting the Eighth Circuit’s statutory history argument). To under- stand the Eighth Circuit’s position, and why, in our judg- ment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.” Congress instructed: “The term ‘compensation’ means any form of money remunera- tion earned by an individual for services rendered as an employee . . . , including remuneration paid for time lost as an employee, but [such] remuneration . . . shall be deemed earned in the month in which such time is lost.” 1937 RRTA, §1(e), 50 Stat. 436 (emphasis added). In 1946, Congress clarified that the phrase “pa[y] for time lost” meant payment for “an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Act of July 31, 1946 (1946 Act), §2, 60 Stat. 722. Thus, originally, the RRTA stated that “compensation” included pay for time lost, and the language added in 1946 presupposed the same. In subsequent amendments, how- ever, Congress removed the references to pay for time lost. First, in 1975, Congress made “compensation” taxable when paid rather than when earned. Congress simultane- ously removed the 1937 language that both referred to pay for time lost and specified when such pay should be “deemed earned.” So amended, the definitional sentence, in its current form, reads: “The term ‘compensation’ means any form of money remuneration paid to an individual for services rendered as an employee . . . .” Act of Aug. 9, Cite as: 586 U. S. ____ (2019) 9 Opinion of the Court 1975 (1975 Act), §204, 89 Stat. 466 (emphasis added). Second, in 1983, Congress shifted the wage base for RRTA taxes from monthly “compensation” to annual “compensation.” See Railroad Retirement Solvency Act of 1983 (1983 Act), §225, 97 Stat. 424–425. Because the “monthly wage bases for railroad retirement taxes [were being] changed to annual amounts,” the House Report explained, the RRTA required “[s]everal technical and conforming amendments.” H. R. Rep. No. 98–30, pt. 2, p. 29 (1983). In a section of the 1983 Act titled “Technical Amendments,” Congress struck the subsection containing, among other provisions, the 1946 Act’s clarification of pay for time lost. 1983 Act, §225, 97 Stat. 424–425. In lieu of the deleted subsection, Congress inserted detailed instruc- tions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time lost. 865 F.3d, at 1119; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration . . . for services rendered as an employee.” That Act also left intact the 1946 Act’s description of pay for time lost. Continuing after the 1975 Act, then, such pay remained RRTA-taxable “compensation.” The 1983 Act, as billed by Congress, effected only “[t]echnical [a]mendments” relating to the change from monthly to annual computation of “compen- sation.” Concerning the 1975 and 1983 alterations, the IRS concluded that Congress revealed no “inten[tion] to exclude payments for time lost from compensation.” 59 Fed. Reg. 66188 (1994). We credit the IRS reading. It would be passing strange for Congress to restrict substan- tially what counts as “compensation” in a manner so oblique. Moreover, the text of the RRTA continues to indicate that “compensation” encompasses pay for time lost. The RRTA excludes from “compensation” a limited subset of 10 BNSF R. CO. v. LOOS Opinion of the Court payments for time lost, notably certain types of sick pay and disability pay. See 26 U.S. C. §3231(e)(1), (4). These enumerated exclusions would be entirely superfluous if, as the Court of Appeals held, the RRTA broadly excludes from “compensation” any and all pay received for time lost. In justification of its confinement of RRTA-taxable receipts to pay for active service, the Court of Appeals also referred to the RRA. The RRA, like the RRTA as enacted in 1937, states that “compensation” “includ[es] remunera- tion paid for time lost as an employee” and specifies that such pay “shall be deemed earned in the month in which such time is lost.” 45 U.S. C. §231(h)(1). Pointing to the discrepancy between the RRA and the amended RRTA, which no longer contains the above-quoted language, the Court of Appeals concluded that Congress intended the RRA, but not the RRTA, to include pay for time lost. Accord post, at 7. Although “ ‘[w]e usually presume differ- ences in language . . . convey differences in meaning,’ ” Wisconsin Central, 585 U. S., at ___ (slip op., at 4), Con- gress’ failure to reconcile the RRA and the amended RRTA is inconsequential. As just explained, the RRTA’s pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ inter- pretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration . . . for services rendered” means the “package of benefits” an employer pays “to retain the employee.” Brief for Respondent 37; post, at 3–4. He therefore agrees with BNSF that benefits like sick pay and vacation pay are taxable “compensation.” He contends, however, that FELA damages for lost wages are of a different order. They are not part of an employee’s “package of benefits,” he observes, and therefore should Cite as: 586 U. S. ____ (2019) 11 Opinion of the Court not count as “compensation.” Such damages, Loos urges, “compensate for an injury” rather than for services ren- dered. Brief for Respondent 20; post, at 3–4. Loos argues in the alternative that even if voluntary settlements qualify as “compensation,” “involuntary payment[s]” in the form of damages do not. Brief for Respondent 33. Our decision in Nierotko undermines Loos’s argument that, unlike sick pay and vacation pay, payments “com- pensat[ing] for an injury,” Brief for Respondent 20, are not taxable under the RRTA. We held in Nierotko that an award of backpay compensating an employee for his wrongful discharge ranked as “wages” under the SSA. That was so, we explained, because the backpay there awarded to the employee redressed “the loss of wages” occasioned by “the employer’s wrong.” 327 U.S., at 364; see supra, at 5. Applying that reasoning here, there should be no dispositive difference between a payment voluntarily made and one required by law.4 Nor does United States v. Cleveland Indians Baseball Co., 532 U.S. 200 (2001), aid Loos’s argument, repeated by the dissent. See post, at 8. Indeed, Cleveland Indians reasserted Nierotko’s holding that “backpay for a time in —————— 4 The dissent, building on Loos’s argument, tenders an inapt analogy between passengers and employees. If BNSF were ordered to pay damages for lost wages to an injured passenger, the dissent asserts, one would not say the passenger had been compensated “for services rendered.” There is no reason, the dissent concludes, to “reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers.” Post, at 5. Under the RRTA, however, this distinction is of course critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employ- ment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they are paid only if the injured person previously “rendered [services] as an employee,” 26 U.S. C. §3231(e)(1), and, indeed, was working for the railroad when the injury occurred, see 45 U.S. C. §51. 12 BNSF R. CO. v. LOOS Opinion of the Court which the employee was not on the job” counts as pay for services, and therefore ranks as wages. 532 U.S., at 210. Cleveland Indians then took up a discrete, “secondary issue” Nierotko presented, one not in contention here, i.e., whether for taxation purposes backpay is allocable to the tax period when paid rather than an earlier time-earned period. 532 U.S., at 211, 213–214, 219–220. Moreover, Quality Stores, which postdated Cleveland Indians, left no doubt that what qualifies under Nierotko as “wages” for benefit purposes also qualifies as such for taxation pur- poses. 572 U.S., at 146–147. C Loos presses a final reason why he should not owe RRTA taxes on his lost wages award. Loos argues, and the District Court held, that the RRTA’s tax on employees does not apply to personal injury damages. He observes that the RRTA taxes “the income of each employee.” 26 U.S. C. §3201(a)–(b) (emphasis added). He then cites a provision of the Internal Revenue Code, 26 U.S. C. §104(a)(2). This provision exempts “damages . . . received . . . on account of personal physical injuries” from federal income taxation by excluding such damages from “gross income.” Loos urges that the exclusion of personal injury damages from “gross income” should carry over to the RRTA’s tax on the “income” of railroad workers, §3201(a)–(b). The argument is unconvincing. As the Government points out, the District Court, echoed by Loos, conflated “the distinct concepts of ‘gross income,’ [a prime compo- nent of] the tax base on which income tax is collected, and ‘compensation,’ the separately defined category of pay- ments that are taxable under the RRTA.” Brief for United States as Amicus Curiae 15. Blending tax bases that Congress kept discrete, the District Court and Loos proffer a scheme in which employees pay no tax on damages Cite as: 586 U. S. ____ (2019) 13 Opinion of the Court compensating for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their re- tirement benefits. That scheme, however, is not plausibly attributable to Congress. For federal income tax purposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U.S. C. §61; see §§1, 63 (imposing a tax on “taxable income,” de- fined as “gross income minus . . . deductions”). Congress provided detailed prescriptions on the scope of “gross income,” excluding from its reach numerous items, among them, personal injury damages. See §§101–140. Conspic- uously absent from the RRTA, however, is any reference to “gross income.” As employed in the RRTA, the word “in- come” merely distinguishes the tax on the employee, an “income . . . tax,” §3201, from the matching tax on the railroad, called an “excise tax.” §§3201, 3221. See also 1937 RRTA, §§2–3 (establishing an “income tax on em- ployees” and an “excise tax on employers”); S. Rep. No. 818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA imposes an “income tax on employees” and an “excise tax on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 6 (1937) (same). Congress, we reiterate, specified not “gross income” but employee “compensation” as the tax base for the RRTA’s income and excise taxes. §§3201, 3221. Congress then excepted certain payments from the calculation of “com- pensation.” See §3231(e); supra, at 9. Congress adopted by cross-reference particular Internal Revenue Code ex- clusions from “gross income,” thereby carving out those specified items from RRTA coverage. See §3231(e)(5)–(6), (9)–(11). Tellingly, Congress did not adopt for RRTA purposes the exclusion of personal injury damages from federal income taxation set out in §104(a)(2). We note, furthermore, that if RRTA taxes were based on “income” or “gross income” rather than “compensation,” the RRTA 14 BNSF R. CO. v. LOOS Opinion of the Court tax base would sweep in nonrailroad income, including, for example, dividends, interest accruals, even lottery winnings. Shifting from “compensation” to “income” as the RRTA tax base would thus saddle railroad workers with more RRTA taxes. Given the multiple flaws in Loos’s last ditch argument, we conclude that §104(a)(2) does not exempt FELA dam- ages from the RRTA’s income and excise taxes. * * * In harmony with this Court’s decisions in Nierotko and Quality Stores, we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for periods of absence from active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the payment is remitted to the recipient because of his status as a service-rendering employee. See 26 U.S. C. §3231(e)(1); 45 U.S. C. §231(h)(1). For the reasons stated, FELA damages for lost wages qualify as RRTA-taxable “compensation.” The judgment of the Court of Appeals for the Eighth Circuit is accordingly reversed, and the case is remanded for proceedings con- sistent with this opinion. It is so ordered. Cite as: 586 U. S. ____ (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–1042 _________________ BNSF RAILWAY COMPANY, PETITIONER v. MICHAEL D.

Respondent Michael Loos was injured while working at petitioner BNSF Railway Company’s railyard. Loos sued BNSF under the Federal Employers’ Liability Act (FELA), as amended, 45 U.S. C. et seq., and gained a $126,212.78 jury verdict. Of that amount the jury as- cribed $30,000 to wages lost during the time Loos was unable to work. BNSF moved for an offset against the judgment. The lost wages awarded Loos, BNSF asserted, constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA), 26 U.S. C. et seq. Therefore, BNSF urged, the railway was required to with- hold a portion of the $30,000 attributable to lost wages to cover Loos’s share of RRTA taxes, which came to $3,765. The District Court and the Court of Appeals for the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA. The question presented: Is a railroad’s payment to an employee for working time lost due to an on-the-job injury taxable “compensation” under the RRTA, 26 U.S. C. 2 BNSF R. CO. v. LOOS Opinion of the Court We granted review to resolve a division of opinion on the answer to that question. 584 U. S. (2018). Compare Hance v. Norfolk S. R. Co., 571 F.3d 511, 523 (CA6 2009) (“compensation” includes pay for time lost); Phillips v. Chicago Central & Pacific R. Co., 853 N.W.2d 636, 650–651 (agency reasonably interpreted “compensation” as including pay for time lost); 463, (“compensation” in- cludes pay for time lost), with 1117–1118 (CA8 2017) (case below) (“compensation” does not include pay for time lost); Mickey v. BNSF R. Co., 437 S.W.3d 207, 218 (“compensation” does not include FELA damages for lost wages). We now hold that an award compensating for lost wages is subject to taxation under the RRTA. I In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The system provides generous pensions as well as benefits “correspon[ding] to those an employee would expect to receive were he covered by the Social Security Act.” Two statutes operate in concert to ensure that retired railroad workers receive their allotted pensions and bene- fits. The first, the RRTA, funds the program by imposing a payroll tax on both railroads and their employees. The RRTA refers to the railroad’s contribution as an “excise” tax, 26 U.S. C. and describes the employee’s share as an “income” tax, Congress assigned to the In- ternal Revenue Service (IRS) responsibility for collecting both taxes. 7801.1 The second statute, the Rail- —————— 1 The railroad remits both taxes to the IRS. As to the income tax, the Cite as: 586 U. S. (2019) 3 Opinion of the Court road Retirement Act (RRA), as restated and amended, 45 U.S. C. et seq., entitles railroad work- ers to various benefits and prescribes eligibility require- ments. The RRA is administered by the Railroad Retire- ment Board. See f(a). Taxes under the RRTA and benefits under the RRA are measured by the employee’s “compensation.” 26 U.S. C. §, 3221; 45 U.S. C. b. The RRTA and RRA separately define “compensation,” but both statutes state that the term means “any form of money remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. 45 U.S. C. (h)(1). This language has remained basically unchanged since the RRTA’s enactment in 1937. See Carriers Taxing Act of 1937 (1937 RRTA), (defining “compen- sation” as “any form of money remuneration earned by an individual for services rendered as an employee”). The RRTA excludes from “compensation” certain types of sick pay and disability pay. See 26 U.S. C. (4)(A). The IRS’s reading of the word “compensation” as it appears in the RRTA has remained constant. One year after the RRTA’s adoption, the IRS stated that “compensa- tion” is not limited to pay for active service but reaches, as well, pay for periods of ab See (1938). This understanding has governed for more than eight decades. As restated in the current IRS regulations, “[t]he term compensation is not confined to amounts paid for active service, but includes amounts paid for an identi- fiable period during which the employee is absent from the active service of the employer.” (2017). —————— railroad deducts the amount owed by the employee from her earnings and then forwards that amount to the IRS. See Tr. of Oral Arg. 22–23. See also 26 U.S. C. (employers must “deduct and withhold” income taxes from earnings). 4 BNSF R. CO. v. LOOS Opinion of the Court In 1994, the IRS added, specifically, that “compensation” includes “pay for time ” see 59 Fed. Reg. 66188 (1994). Congress created both the railroad retirement system and the Social Security system during the Great Depres- sion primarily to ensure the financial security of members of the workforce when they reach old age. See Wisconsin Central Ltd. v. United States, 585 U. S. (2018) (slip op., at 1); (1937). Given the similarities in timing and purpose of the two programs, it is hardly surprising that their statutory foundations mirror each other. Regarding Social Security, the Federal Insurance Contributions Act (FICA), 26 U.S. C. et seq., taxes employers and employees to fund benefits, which are distributed pursuant to the Social Security Act (SSA), as amended, 42 U.S. C. et seq. Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” See –636. Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compen- sation.” “Wages” under the FICA and the SSA mean “all remuneration for employment,” and “employment,” in turn, means “any service, of whatever nature, performed by an employee.” 26 U.S. C. (FICA); see 42 U.S. C. 410(a) (SSA). Reading these pre- scriptions together, the term “wages” encompasses “all remuneration” for “any service, of whatever nature, per- formed by an employee.” II A To determine whether RRTA-qualifying “compensation” includes an award of damages for lost wages, we begin Cite as: 586 U. S. (2019) 5 Opinion of the Court with the statutory text.2 The RRTA defines “compensa- tion” as “remuneration paid to an individual for services rendered as an employee.” 26 U.S. C. This definition, as just noted, is materially indistinguishable from the FICA’s definition of “wages” to include “remuner- ation” for “any service, of whatever nature, performed by an employee.” Given the textual similarity between the definitions of “compensation” for railroad retirement purposes and “wages” for Social Security purposes, our decisions on the meaning of “wages” in Social Security Bd. v. 327 U.S. 358 (1946), and United inform our comprehension of the RRTA term “compensation.” In the National Labor Relations Board found that an employee had been “wrongfully discharged for union activity” and awarded him The Social Security Board refused to credit the backpay award in calculating the employee’s benefits. at 365–366. In the Board’s view, “wages” covered only pay for active service. We disagreed. Emphasizing that the phrase “any service performed” denotes “breadth of coverage,” we held that “wages” means remuneration for “the entire employer- employee relationship”; in other words, “wages” embraced pay for active service plus pay received for periods of absence from active service. Backpay, we —————— 2 Before turning to the language of the RRTA, the dissent endeavors to unearth the reason why BNSF has pursued this case. The railroad’s “gambit,” the dissent surmises, is to increase pressure on injured workers to settle their claims. Post, at 3. Contrast with the dissent’s conjecture, BNSF’s entirely plausible account of a railroad’s stake in this dispute. Because the RRA credits lost wages toward an employee’s benefits, see 45 U.S. C. (h)(1), BNSF posits that immunizing those payments from RRTA taxes would expose the system to “a long-term risk of insolvency.” Tr. of Oral Arg. 4; see Reply Brief for Petitioner 14. 6 BNSF R. CO. v. LOOS Opinion of the Court reasoned, counts as “wages” because it compensates for “the loss of wages which the employee suffered from the employer’s wrong.” In Quality Stores, we again trained on the meaning of “wages,” reiterating that “Congress chose to define wages broadly.” (internal quotation marks omitted). Guided by Quality Stores held that severance payments qualified as “wages” taxable under the FICA. “[C]ommon sense,” we observed, “dictates that employees receive th[ose] payments ‘for employment.’ ” Severance payments, the Court spelled out, “are made to employees only,” “are made in considera- tion for employment,” and are calculated “according to the function and seniority of the [terminated] employee.” at 146–147. In line with Quality Stores, and the IRS’s long held construction, we hold that “compensation” under the RRTA encompasses not simply pay for active service but, in addition, pay for periods of absence from active ser- vice—provided that the remuneration in question stems from the “employer-employee relationship.” 327 U.S., B Damages awarded under the FELA for lost wages fit comfortably within this definition. The FELA “makes railroads liable in money damages to their employees for on-the-job injuries.” BNSF R. Co. v. Tyrrell, 581 U. S. (2017) (slip op., at 1); see 45 U.S. C. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for, inter alia, working time lost due to the employer’s wrongdoing. FELA dam- ages for lost wages, then, are functionally equivalent to an award of backpay, which compensates an employee “for a period of time during which” the employee is “wrongfully Cite as: 586 U. S. (2019) 7 Opinion of the Court separated from his job.” 327 U.S., Just as held that backpay falls within the definition of “wages,” ibid., we conclude that FELA damages for lost wages qualify as “compensation” and are therefore taxable under the RRTA. III A The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for “services that an employee actually renders,” in other words, pay for active service. Consequently, the court held that “compensation” within the RRTA’s compass did not reach pay for periods of ab- In so ruling, the Court of Ap- peals attempted to distinguish and Quality Stores. The Social Security decisions, the court said, were inapposite because the FICA “taxes payment for ‘employ- ment,’ ” whereas the RRTA “tax[es] payment for ‘services.’ ” As noted, at 3–4, the FICA defines “employment” in language resembling the RRTA in all relevant respects. Compare 26 U.S. C. (FICA) (“any service, of whatever nature, per- formed by an employee”) with (RRTA) (“services rendered as an employee”). Construing RRTA “compensation” as less embracive than “wages” covered by the FICA would introduce an unwarranted disparity between terms Congress appeared to regard as equiva- lents. The reasoning of and Quality Stores, as we see it, resists the Eighth Circuit’s swift writeoff.3 and Quality Stores apart, we would in any event conclude that the RRTA term “compensation” covers —————— 3 The dissent’s reduction of ’s significance fares no better. the dissent urges, is distinguishable because it involved “a different factual context.” Post, at 7. But as just at 6–7, the facts in resemble those here in all material respects. 8 BNSF R. CO. v. LOOS Opinion of the Court pay for time Restricting “compensation” to pay for active service, the Court of Appeals relied on statutory history and, in particular, the eventual deletion of two references to pay for time lost contained in early rendi- tions of the RRTA. See also post, at 6–7 (presenting the Eighth Circuit’s statutory history argument). To under- stand the Eighth Circuit’s position, and why, in our judg- ment, that position does not withstand scrutiny, some context is in order. On enactment of the RRTA in 1937, Congress made “compensation” taxable at the time it was earned and provided specific guidance on when pay for time lost should be “deemed earned.” Congress instructed: “The term ‘compensation’ means any form of money remunera- tion earned by an individual for services rendered as an employee including remuneration paid for time lost as an employee, but [such] remuneration shall be deemed earned in the month in which such time is ” 1937 RRTA, In 1946, Congress clarified that the phrase “pa[y] for time lost” meant payment for “an identifiable period of absence from the active service of the employer, including absence on account of personal injury.” Act of July 31, 1946 (1946 Act), Thus, originally, the RRTA stated that “compensation” included pay for time lost, and the language added in 1946 presupposed the same. In subsequent amendments, how- ever, Congress removed the references to pay for time First, in 1975, Congress made “compensation” taxable when paid rather than when earned. Congress simultane- ously removed the 1937 language that both referred to pay for time lost and specified when such pay should be “deemed earned.” So amended, the definitional sentence, in its current form, reads: “The term ‘compensation’ means any form of money remuneration paid to an individual for services rendered as an employee” Act of Aug. 9, Cite as: 586 U. S. (2019) 9 Opinion of the Court 1975 (1975 Act), Second, in 1983, Congress shifted the wage base for RRTA taxes from monthly “compensation” to annual “compensation.” See Railroad Retirement Solvency Act of 1983 (1983 Act), –425. Because the “monthly wage bases for railroad retirement taxes [were being] changed to annual amounts,” the House Report the RRTA required “[s]everal technical and conforming amendments.” H. R. Rep. No. 98–30, pt. 2, p. 29 (1983). In a section of the 1983 Act titled “Technical Amendments,” Congress struck the subsection containing, among other provisions, the 1946 Act’s clarification of pay for time 1983 Act, –425. In lieu of the deleted subsection, Congress inserted detailed instruc- tions concerning the new annual wage base. As the Court of Appeals and the dissent see it, the 1975 and 1983 deletions show that “compensation” no longer includes pay for time ; see post, at 6–7. We are not so sure. The 1975 Act left unaltered the language at issue here, “remuneration for services rendered as an employee.” That Act also left intact the 1946 Act’s description of pay for time Continuing after the 1975 Act, then, such pay remained RRTA-taxable “compensation.” The 1983 Act, as billed by Congress, effected only “[t]echnical [a]mendments” relating to the change from monthly to annual computation of “compen- sation.” Concerning the 1975 and 1983 alterations, the IRS concluded that Congress revealed no “inten[tion] to exclude payments for time lost from compensation.” 59 Fed. Reg. 66188 (1994). We credit the IRS reading. It would be passing strange for Congress to restrict substan- tially what counts as “compensation” in a manner so oblique. Moreover, the text of the RRTA continues to indicate that “compensation” encompasses pay for time The RRTA excludes from “compensation” a limited subset of 10 BNSF R. CO. v. LOOS Opinion of the Court payments for time lost, notably certain types of sick pay and disability pay. See 26 U.S. C. (4). These enumerated exclusions would be entirely superfluous if, as the Court of Appeals held, the RRTA broadly excludes from “compensation” any and all pay received for time In justification of its confinement of RRTA-taxable receipts to pay for active service, the Court of Appeals also referred to the RRA. The RRA, like the RRTA as enacted in 1937, states that “compensation” “includ[es] remunera- tion paid for time lost as an employee” and specifies that such pay “shall be deemed earned in the month in which such time is ” 45 U.S. C. (h)(1). Pointing to the discrepancy between the RRA and the amended RRTA, which no longer contains the above-quoted language, the Court of Appeals concluded that Congress intended the RRA, but not the RRTA, to include pay for time Accord post, at 7. Although “ ‘[w]e usually presume differ- ences in language convey differences in meaning,’ ” Wisconsin Central, 585 U. S., at (slip op., at 4), Con- gress’ failure to reconcile the RRA and the amended RRTA is inconsequential. As just the RRTA’s pinpointed exclusions from RRTA taxation signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” B Instead of adopting lockstep the Court of Appeals’ inter- pretation, Loos takes a different approach. In his view, echoed by the dissent, “remuneration for services rendered” means the “package of benefits” an employer pays “to retain the employee.” Brief for Respondent 37; post, at 3–4. He therefore agrees with BNSF that benefits like sick pay and vacation pay are taxable “compensation.” He contends, that FELA damages for lost wages are of a different order. They are not part of an employee’s “package of benefits,” he observes, and therefore should Cite as: 586 U. S. (2019) 11 Opinion of the Court not count as “compensation.” Such damages, Loos urges, “compensate for an injury” rather than for services ren- dered. Brief for Respondent 20; post, at 3–4. Loos argues in the alternative that even if voluntary settlements qualify as “compensation,” “involuntary payment[s]” in the form of damages do not. Brief for Respondent 33. Our decision in undermines Loos’s argument that, unlike sick pay and vacation pay, payments “com- pensat[ing] for an injury,” Brief for Respondent 20, are not taxable under the RRTA. We held in that an award of backpay compensating an employee for his wrongful discharge ranked as “wages” under the SSA. That was so, we because the backpay there awarded to the employee redressed “the loss of wages” occasioned by “the employer’s wrong.” 327 U.S., ; see Applying that reasoning here, there should be no dispositive difference between a payment voluntarily made and one required by law.4 Nor does United aid Loos’s argument, repeated by the dissent. See post, at 8. Indeed, Cleveland Indians reasserted ’s holding that “backpay for a time in —————— 4 The dissent, building on Loos’s argument, tenders an inapt analogy between passengers and employees. If BNSF were ordered to pay damages for lost wages to an injured passenger, the dissent asserts, one would not say the passenger had been compensated “for services rendered.” There is no reason, the dissent concludes, to “reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers.” Post, Under the RRTA, this distinction is of course critical. The passenger’s damages for lost wages are not taxable under the RRTA, for she has no employ- ment relationship with the railroad. In contrast, FELA damages for lost wages are taxable because they are paid only if the injured person previously “rendered [services] as an employee,” 26 U.S. C. and, indeed, was working for the railroad when the injury occurred, see 45 U.S. C. 12 BNSF R. CO. v. LOOS Opinion of the Court which the employee was not on the job” counts as pay for services, and therefore ranks as Cleveland Indians then took up a discrete, “secondary issue” presented, one not in contention here, i.e., whether for taxation purposes backpay is allocable to the tax period when paid rather than an earlier time-earned 213–214, 219–220. Moreover, Quality Stores, which postdated Cleveland Indians, left no doubt that what qualifies under as “wages” for benefit purposes also qualifies as such for taxation pur- –147. C Loos presses a final reason why he should not owe RRTA taxes on his lost wages award. Loos argues, and the District Court held, that the RRTA’s tax on employees does not apply to personal injury damages. He observes that the RRTA taxes “the income of each employee.” 26 U.S. C. (a)–(b) He then cites a provision of the Internal Revenue Code, 26 U.S. C. This provision exempts “damages received on account of personal physical injuries” from federal income taxation by excluding such damages from “gross income.” Loos urges that the exclusion of personal injury damages from “gross income” should carry over to the RRTA’s tax on the “income” of railroad workers, (a)–(b). The argument is unconvincing. As the Government points out, the District Court, echoed by Loos, conflated “the distinct concepts of ‘gross income,’ [a prime compo- nent of] the tax base on which income tax is collected, and ‘compensation,’ the separately defined category of pay- ments that are taxable under the RRTA.” Brief for United States as Amicus Curiae 15. Blending tax bases that Congress kept discrete, the District Court and Loos proffer a scheme in which employees pay no tax on damages Cite as: 586 U. S. (2019) 13 Opinion of the Court compensating for personal injuries; railroads pay the full excise tax on such compensation; and employees receive full credit for the compensation in determining their re- tirement benefits. That scheme, is not plausibly attributable to Congress. For federal income tax purposes, “gross income” means “all income” “[e]xcept as otherwise provided.” 26 U.S. C. see 63 (imposing a tax on “taxable income,” de- fined as “gross income minus deductions”). Congress provided detailed prescriptions on the scope of “gross income,” excluding from its reach numerous items, among them, personal injury damages. See Conspic- uously absent from the RRTA, is any reference to “gross income.” As employed in the RRTA, the word “in- come” merely distinguishes the tax on the employee, an “income tax,” from the matching tax on the railroad, called an “excise tax.” §, 3221. See also 1937 RRTA, (establishing an “income tax on em- ployees” and an “excise tax on employers”); S. Rep. No. 818, 75th Cong., 1st Sess., 5 (1937) (stating that the RRTA imposes an “income tax on employees” and an “excise tax on employers”); H. R. Rep. No. 1071, 75th Cong., 1st Sess., 6 (1937) (same). Congress, we reiterate, specified not “gross income” but employee “compensation” as the tax base for the RRTA’s income and excise taxes. §, 3221. Congress then excepted certain payments from the calculation of “com- pensation.” See Congress adopted by cross-reference particular Internal Revenue Code ex- clusions from “gross income,” thereby carving out those specified items from RRTA coverage. See (9)–(11). Tellingly, Congress did not adopt for RRTA purposes the exclusion of personal injury damages from federal income taxation set out in We note, furthermore, that if RRTA taxes were based on “income” or “gross income” rather than “compensation,” the RRTA 14 BNSF R. CO. v. LOOS Opinion of the Court tax base would sweep in nonrailroad income, including, for example, dividends, interest accruals, even lottery winnings. Shifting from “compensation” to “income” as the RRTA tax base would thus saddle railroad workers with more RRTA taxes. Given the multiple flaws in Loos’s last ditch argument, we conclude that does not exempt FELA dam- ages from the RRTA’s income and excise taxes. * * * In harmony with this Court’s decisions in and Quality Stores, we hold that “compensation” for RRTA purposes includes an employer’s payments to an employee for active service and for periods of absence from active service. It is immaterial whether the employer chooses to make the payment or is legally required to do so. Either way, the payment is remitted to the recipient because of his status as a service-rendering employee. See 26 U.S. C. 45 U.S. C. (h)(1). For the reasons stated, FELA damages for lost wages qualify as RRTA-taxable “compensation.” The judgment of the Court of Appeals for the Eighth Circuit is accordingly reversed, and the case is remanded for proceedings con- sistent with this opinion. It is so ordered. Cite as: 586 U. S. (2019) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–1042 BNSF RAILWAY COMPANY, PETITIONER v. MICHAEL D.

per_curiam

per_curiam

San Diego v. Roe

2004-12-06

https://www.courtlistener.com/opinion/137729/san-diego-v-roe/

https://www.courtlistener.com/api/rest/v3/clusters/137729/

2004-005

The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted the City's motion to dismiss. The Court of Appeals for the Ninth Circuit reversed. The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed. I Respondent John Roe, a San Diego police officer, made a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online auction site. His user name was "[email protected]," a word play on a high priority police radio call. 356 F.3d 1108, 1110 (CA9 2004). The uniform apparently was not the specific uniform worn by the San Diego police, but it was clearly identifiable as a police uniform. Roe also sold custom videos, as well as police equipment, including official uniforms of the San Diego Police Department (SDPD), and various other items such as men's underwear. Roe's eBay user profile identified him as employed in the field of law enforcement. Roe's supervisor, a police sergeant, discovered Roe's activities when, while on eBay, he came across an official SDPD police uniform for sale offered by an individual with the user-name "[email protected]." He searched for other items Code3stud offered and discovered listings for Roe's videos depicting the objectionable material. Recognizing Roe's picture, the sergeant printed images of certain of Roe's offerings and shared them with others in Roe's chain of command, including a police captain. The captain notified the SDPD's *79 internal affairs department, which began an investigation. In response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating. The investigation revealed that Roe's conduct violated specific SDPD policies, including conduct unbecoming of an officer, outside employment, and immoral conduct. When confronted, Roe admitted to selling the videos and police paraphernalia. The SDPD ordered Roe to "cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U. S. Mail, commercial vendors or distributors, or any other medium available to the public." Id., at 1111 (internal quotation marks omitted). Although Roe removed some of the items he had offered for sale, he did not change his seller's profile, which described the first two videos he had produced and listed their prices as well as the prices for custom videos. After discovering Roe's failure to follow its orders, the SDPD—citing Roe for the added violation of disobedience of lawful orders—began termination proceedings. The proceedings resulted in Roe's dismissal from the police force. Roe brought suit in the District Court pursuant to Rev. Stat. § 1979, 42 U.S. C. § 1983, alleging that the employment termination violated his First Amendment right to free speech. In granting the City's motion to dismiss, the District Court decided that Roe had not demonstrated that selling official police uniforms and producing, marketing, and selling sexually explicit videos for profit qualified as expression relating to a matter of "public concern" under this Court's decision in Connick v. Myers, 461 U.S. 138 (1983). In reversing, the Court of Appeals held Roe's conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Court of Appeals' conclusion was that Roe's expression was not an internal workplace *80 grievance, took place while he was off duty and away from his employer's premises, and was unrelated to his employment. 356 F.3d, at 1110, 1113-1114. II A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 605-606 (1967). On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See Connick, supra; Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification "far stronger than mere speculation" in regulating it. United States v. Treasury Employees, 513 U.S. 454, 465, 475 (1995) (NTEU). We have little difficulty in concluding that the City was not barred from terminating Roe under either line of cases. A In concluding that Roe's activities qualified as a matter of public concern, the Court of Appeals relied heavily on the Court's decision in NTEU. 356 F.3d, at 1117. In NTEU it was established that the speech was unrelated to the employment and had no effect on the mission and purpose of the employer. The question was whether the Federal Government could impose certain monetary limitations on outside *81 earnings from speaking or writing on a class of federal employees. The Court held that, within the particular classification of employment, the Government had shown no justification for the outside salary limitations. The First Amendment right of the employees sufficed to invalidate the restrictions on the outside earnings for such activities. The Court noted that throughout history public employees who undertook to write or to speak in their spare time had made substantial contributions to literature and art, 513 U.S., at 465, and observed that none of the speech at issue "even arguably [had] any adverse impact" on the employer, ibid. The Court of Appeals' reliance on NTEU was seriously misplaced. Although Roe's activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as "in the field of law enforcement," and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute. 356 F.3d, at 1111 (internal quotation marks omitted). The Court of Appeals noted the City conceded Roe's activities were "unrelated" to his employment. Id., at 1112, n. 4. In the context of the pleadings and arguments, the proper interpretation of the City's statement is simply to underscore the obvious proposition that Roe's speech was not a comment on the workings or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the SDPD. On that score the City's consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present *82 case falls outside the protection afforded in NTEU. The authorities that instead control, and which are considered below, are this Court's decisions in Pickering, supra, Connick, supra, and the decisions which follow them. B To reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission, the Pickering Court adopted a balancing test. It requires a court evaluating restraints on a public employee's speech to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S., at 568; see also Connick, supra, at 142. Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. See 391 U.S., at 572. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it. Pickering did not hold that any and all statements by a public employee are entitled to balancing. To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government offices. See Connick, 461 U. S., at 143. This concern prompted the Court in Connick to explain a threshold inquiry (implicit in Pickering itself) that in order to merit Pickering balancing, a public employee's speech must touch on a matter of "public *83 concern." 461 U.S., at 143 (internal quotation marks omitted). In Connick, an assistant district attorney, unhappy with her supervisor's decision to transfer her to another division, circulated an intraoffice questionnaire. The document solicited her co-workers' views on, inter alia, office transfer policy, office morale, the need for grievance committees, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. See id., at 141. Finding that—with the exception of the final question—the questionnaire touched not on matters of public concern but on internal workplace grievances, the Court held no Pickering balancing was required. 461 U.S., at 141. To conclude otherwise would ignore the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." Id., at 143. Connick held that a public employee's speech is entitled to Pickering balancing only when the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." 461 U.S., at 147. Although the boundaries of the public concern test are not well defined, Connick provides some guidance. It directs courts to examine the "content, form, and context of a given statement, as revealed by the whole record" in assessing whether an employee's speech addresses a matter of public concern. Id., at 146-147. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. Id., at 143, n. 5. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), and Time, Inc. v. Hill, 385 U.S. 374, 387-388 (1967). These cases make clear that public concern is something that is a *84 subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. See Rankin v. McPherson, 483 U.S. 378 (1987). Applying these principles to the instant case, there is no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test. He fails the threshold test and Pickering balancing does not come into play. Connick is controlling precedent, but to show why this is not a close case it is instructive to note that even under the view expressed by the dissent in Connick from four Members of the Court, the speech here would not come within the definition of a matter of public concern. The dissent in Connick would have held that the entirety of the questionnaire circulated by the employee "discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which . . . an elected official charged with managing a vital governmental agency, discharges his responsibilities." 461 U.S., at 163 (opinion of Brennan, J.). No similar purpose could be attributed to the employee's speech in the present case. Roe's activities did nothing to inform the public about any aspect of the SDPD's functioning or operation. Nor were Roe's activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe's expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer's image. The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court's cases have *85 understood that term in the context of restrictions by governmental entities on the speech of their employees. The judgment of the Court of Appeals is Reversed

The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted the City's motion to dismiss. The Court of Appeals for the Ninth Circuit reversed. The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed. I Respondent John Roe, a San Diego police officer, made a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online auction site. His user name was "[email protected]," a word play on a high priority police radio call. The uniform apparently was not the specific uniform worn by the San Diego police, but it was clearly identifiable as a police uniform. Roe also sold custom videos, as well as police equipment, including official uniforms of the San Diego Police Department (SDPD), and various other items such as men's underwear. Roe's eBay user profile identified him as employed in the field of law enforcement. Roe's supervisor, a police sergeant, discovered Roe's activities when, while on eBay, he came across an official SDPD police uniform for sale offered by an individual with the user-name "[email protected]." He searched for other items Code3stud offered and discovered listings for Roe's videos depicting the objectionable material. Recognizing Roe's picture, the sergeant printed images of certain of Roe's offerings and shared them with others in Roe's chain of command, including a police captain. The captain notified the SDPD's *79 internal affairs department, which began an investigation. In response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating. The investigation revealed that Roe's conduct violated specific SDPD policies, including conduct unbecoming of an officer, outside employment, and immoral conduct. When confronted, Roe admitted to selling the videos and police paraphernalia. The SDPD ordered Roe to "cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U. S. Mail, commercial vendors or distributors, or any other medium available to the public." Although Roe removed some of the items he had offered for sale, he did not change his seller's profile, which described the first two videos he had produced and listed their prices as well as the prices for custom videos. After discovering Roe's failure to follow its orders, the SDPD—citing Roe for the added violation of disobedience of lawful orders—began termination proceedings. The proceedings resulted in Roe's dismissal from the police force. Roe brought suit in the District Court pursuant to Rev. Stat. 1979, 42 U.S. C. 1983, alleging that the employment termination violated his First Amendment right to free speech. In granting the City's motion to dismiss, the District Court decided that Roe had not demonstrated that selling official police uniforms and producing, marketing, and selling sexually explicit videos for profit qualified as expression relating to a matter of "public concern" under this Court's decision in In reversing, the Court of Appeals held Roe's conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Court of Appeals' conclusion was that Roe's expression was not an internal workplace *80 grievance, took place while he was off duty and away from his employer's premises, and was unrelated to his 356 F.3d, at 1113-1114. II A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her See, e. g., On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification "far stronger than mere speculation" in regulating it. United We have little difficulty in concluding that the City was not barred from terminating Roe under either line of cases. A In concluding that Roe's activities qualified as a matter of public concern, the Court of Appeals relied heavily on the Court's decision in In NTEU it was established that the speech was unrelated to the employment and had no effect on the mission and purpose of the employer. The question was whether the Federal Government could impose certain monetary limitations on outside *81 earnings from speaking or writing on a class of federal employees. The Court held that, within the particular classification of employment, the Government had shown no justification for the outside salary limitations. The First Amendment right of the employees sufficed to invalidate the restrictions on the outside earnings for such activities. The Court noted that throughout history public employees who undertook to write or to speak in their spare time had made substantial contributions to literature and art, and observed that none of the speech at issue "even arguably [had] any adverse impact" on the employer, The Court of Appeals' reliance on NTEU was seriously misplaced. Although Roe's activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as "in the field of law enforcement," and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute. 356 F.3d, The Court of Appeals noted the City conceded Roe's activities were "unrelated" to his In the context of the pleadings and arguments, the proper interpretation of the City's statement is simply to underscore the obvious proposition that Roe's speech was not a comment on the workings or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the SDPD. On that score the City's consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present *82 case falls outside the protection afforded in The authorities that instead control, and which are considered below, are this Court's decisions in Pickering, and the decisions which follow them. B To reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission, the Pickering Court adopted a balancing test. It requires a court evaluating restraints on a public employee's speech to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." ; see also Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. See The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it. Pickering did not hold that any and all statements by a public employee are entitled to balancing. To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government offices. See This concern prompted the Court in to explain a threshold inquiry (implicit in Pickering itself) that in order to merit Pickering balancing, a public employee's speech must touch on a matter of "public *83 concern." In an assistant district attorney, unhappy with her supervisor's decision to transfer her to another division, circulated an intraoffice questionnaire. The document solicited her co-workers' views on, inter alia, office transfer policy, office morale, the need for grievance committees, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. See Finding that—with the exception of the final question—the questionnaire touched not on matters of public concern but on internal workplace grievances, the Court held no Pickering balancing was 461 U.S., To conclude otherwise would ignore the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." held that a public employee's speech is entitled to Pickering balancing only when the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." Although the boundaries of the public concern test are not well defined, provides some guidance. It directs courts to examine the "content, form, and context of a given statement, as revealed by the whole record" in assessing whether an employee's speech addresses a matter of public concern. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. n. 5. That standard is established by our decisions in Cox Broadcasting and Time, These cases make clear that public concern is something that is a *84 subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. See Applying these principles to the instant case, there is no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test. He fails the threshold test and Pickering balancing does not come into play. is controlling precedent, but to show why this is not a close case it is instructive to note that even under the view expressed by the dissent in from four Members of the Court, the speech here would not come within the definition of a matter of public concern. The dissent in would have held that the entirety of the questionnaire circulated by the employee "discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which an elected official charged with managing a vital governmental agency, discharges his responsibilities." No similar purpose could be attributed to the employee's speech in the present case. Roe's activities did nothing to inform the public about any aspect of the SDPD's functioning or operation. Nor were Roe's activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe's expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer's image. The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court's cases have *85 understood that term in the context of restrictions by governmental entities on the speech of their employees. The judgment of the Court of Appeals is Reversed

Justice Ginsburg

majority

Bruce v. Samuels

2016-01-12

https://www.courtlistener.com/opinion/3168777/bruce-v-samuels/

https://www.courtlistener.com/api/rest/v3/clusters/3168777/

2015-015

This case concerns the payment of filing fees for civil actions commenced by prisoners in federal courts. Until 1996, indigent prisoners, like other indigent persons, could file a civil action without paying any filing fee. See 28 U.S. C. §1915(a)(1). In the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, Congress placed sev- eral limitations on prisoner litigation in federal courts. Among those limitations, Congress required prisoners qualified to proceed in forma pauperis nevertheless to pay an initial partial filing fee. That fee is statutorily set as “20 percent of the greater of ” the average monthly depos- its in the prisoner’s account or the average monthly bal- ance of the account over the preceding six months. §1915(b)(1). Thereafter, to complete payment of the filing fee, prisoners must pay, in monthly installments, “20 percent of the preceding month’s income credited to the prisoner’s account.” §1915(b)(2). The initial partial filing fee may not be exacted if the prisoner has no means to pay it, §1915(b)(4), and no monthly installments are required unless the prisoner has more than $10 in his account, 2 BRUCE v. SAMUELS Opinion of the Court §1915(b)(2). It is undisputed that the initial partial filing fee is to be assessed on a per-case basis, i.e., each time the prisoner files a lawsuit. In contest here is the calculation of subse- quent monthly installment payments. Petitioner Antoine Bruce urges a per-prisoner approach under which he would pay 20 percent of his monthly income regardless of the number of cases he has filed. The Government urges, and the court below followed, a per-case approach under which a prisoner would pay 20 percent of his monthly income for each case he has filed. Courts of Appeals have divided on which of these two approaches §1915(b)(2) orders.1 To resolve the conflict, we granted certiorari. 576 U. S. ___ (2015). We hold that monthly installment payments, like the initial partial payment, are to be assessed on a per-case basis. Nothing in §1915’s current design supports treating a prisoner’s second or third action unlike his first lawsuit. I A In 1892, Congress enacted the in forma pauperis (IFP) statute, now codified at 28 U.S. C. §1915, “to ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). Reacting to “a sharp rise in prisoner litigation,” Woodford —————— 1 CompareAtchison v. Collins, 288 F.3d 177, 181 (CA5 2002) ( per curiam); Newlin v. Helman, 123 F.3d 429, 436 (CA7 1997), overruled in part on other grounds by Lee v. Clinton, 209 F.3d 1025 (CA7 2000), and Walker v. O’Brien, 216 F.3d 626 (CA7 2000); Lefkowitz v. Citi-Equity Group, Inc., 146 F.3d 609, 612 (CA8 1998); Christensen v. Big Horn Cty. Bd. of Cty. Comm’rs, 374 Fed. Appx. 821, 829–833 (CA10 2010); and Pinson v. Samuels, 761 F.3d 1, 7–10 (CADC 2014) (case below) (adopting per-case approach), with Whitfield v. Scully, 241 F.3d 264, 276–277 (CA2 2001); Siluk v. Merwin, 783 F.3d 421, 427–436 (CA3 2015); and Torres v. O’Quinn, 612 F.3d 237, 241–248 (CA4 2010) (adopting per-prisoner approach). Cite as: 577 U. S. ____ (2016) 3 Opinion of the Court v. Ngo, 548 U.S. 81, 84 (2006), Congress in 1996 enacted the PLRA, which installed a variety of measures “designed to filter out the bad claims [filed by prisoners] and facili- tate consideration of the good,” Coleman v. Tollefson, 575 U. S. ___, ___ (2015) (slip op., at 3) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007); alteration in original). Among those measures, Congress required prisoners to pay filing fees for the suits or appeals they launch. The provisions on fee payment, set forth in §1915(b), read: “(1) . . . [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be re- quired to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of— “(A) the average monthly deposits to the prisoner’s ac- count; or “(B) the average monthly balance in the prisoner’s ac- count for the 6-month period immediately preceding the filing of the complaint or notice of appeal. “(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the pris- oner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.” The monthly installment scheme described in §1915(b)(2) also applies to costs awarded against prisoners when they are judgment losers. §1915(f )(2)(B). To further contain prisoner litigation, the PLRA intro- duced a three-strikes provision: Prisoners whose suits or appeals are dismissed three or more times as frivolous, malicious, or failing to state a claim on which relief may 4 BRUCE v. SAMUELS Opinion of the Court be granted are barred from proceeding IFP “unless the prisoner is under imminent danger of serious physical injury.” §1915(g). In other words, for most three strikers, all future filing fees become payable in full upfront. Congress included in its 1996 overhaul of §1915 a safety- valve provision to ensure that the fee requirements would not bar access to the courts: “In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” §1915(b)(4). B Petitioner Antoine Bruce, a federal inmate serving a 15- year sentence, is a frequent litigant.2 In the instant case, Bruce challenges his placement in a special management unit at the Federal Correctional Institution in Talladega, Alabama. Pinson v. Samuels, 761 F.3d 1, 3–4 (CADC 2014).3 Bruce had previously incurred filing-fee obliga- tions in other cases and maintained that the monthly filing-fee payments for this case would not become due until those prior obligations were satisfied. Id., at 4, 7. The Court of Appeals for the District of Columbia Circuit, whose decision is before us for review, rejected Bruce’s argument. Id., at 8–10. Bruce must make monthly filing- fee payments in this case, the court held, simultaneously with such payments in earlier commenced cases. Id., at 8. —————— 2 At oral argument, Bruce’s counsel informed the Court that Bruce had framed or joined 19 prison-litigation cases, although “the last seven or so have not been filed . . . because [Bruce] had had three strikes by the 12th.” Tr. of Oral Arg. 23. See Brief for Respondents 40 (stating that Bruce filed three new lawsuits during the pendency of his case before this Court). 3 The Court of Appeals construed the pleadings in this case as a peti- tion for a writ of mandamus. 761 F.3d, at 3. We assume without deciding that a mandamus petition qualifies as a “civil action” or “appeal” for purposes of 28 U.S. C. §1915(b). Cite as: 577 U. S. ____ (2016) 5 Opinion of the Court We agree with the appeals court that §1915(b)(2) calls for simultaneous, not sequential, recoupment of multiple filing fees. II The IFP statute does not explicitly address whether multiple filing fees (after the initial partial payment) should be paid simultaneously or sequentially. Bruce and the Government present competing interpretations. A In support of the per-prisoner approach, Bruce relies principally on what he sees as a significant contrast be- tween the singular “clerk” and the plural “fees” as those nouns appear in 28 U.S. C. §1915(b)(2). That provision requires payments to be forwarded “to the clerk of the court . . . until the filing fees are paid.” Ibid. (empha- sis added). Even when more than one filing fee is owed, Bruce contends, the statute instructs that only one clerk will receive payment each month; in other words, fee payments are to be made sequentially rather than simultaneously. The initial partial payment, which is charged on a per- case basis, plus the three-strikes provision, Bruce urges, together suffice to satisfy the PLRA’s purpose, which is to “force prisoners to think twice about the case and not just file reflexively,” 141 Cong. Rec. 14572 (1995) (remarks of Sen. Kyl). The additional economic disincentive that the per-case approach would occasion, Bruce asserts, could excessively encumber access to federal courts. Furthermore, Bruce points out, the per-case approach breaks down when a prisoner incurs more than five obliga- tions. Nothing will be left in the account to pay the sixth fee, Bruce observes. Necessarily, therefore, its payment will be entirely deferred. Why treat the second obligation unlike the sixth, Bruce asks. Isn’t the statute sensibly 6 BRUCE v. SAMUELS Opinion of the Court read to render all monthly payments sequential? Bruce notes in this regard that, under the per-case approach, his ability to use his account to purchase amenities will be progressively curtailed; indeed, the account might be reduced to zero upon his filing or joining a fifth case. Finally, Bruce argues, administrative difficulties coun- sel against the per-case approach. Costs could dwarf the monetary yield if prisons, under a per-case regime, were obliged to send as many as five checks to five different courts each month. And the problems faced by state- prison officials—who sometimes must choose which of several claims on a prisoner’s income (e.g., child-support, medical copayments) should take precedence—would be exacerbated under a system demanding simultaneous payment of multiple litigation charges. B The Government emphasizes that §1915 as a whole has a single-case focus, providing instructions for each case. It would be anomalous, the Government urges, to treat paragraph (b)(1)’s initial partial payment, which Bruce concedes is directed at a single case, differently than paragraph (b)(2)’s subsequent monthly payments. The two paragraphs, the Government observes, are linked by paragraph (b)(2)’s opening clause: “After payment of the initial partial filing fee.” The per-case approach, the Government adds, better comports with the purpose of the PLRA to deter frivolous suits. See Newlin v. Helman, 123 F.3d 429, 436 (CA7 1997) (Easterbrook, J.) (“Otherwise a prisoner could file multiple suits for the price of one, postponing payment of the fees for later-filed suits until after the end of impris- onment (and likely avoiding them altogether [because fees are often uncollectable on a prisoner’s release]).”), over- ruled in part on other grounds by Lee v. Clinton, 209 F.3d 1025 (CA7 2000), and Walker v. O’Brien, 216 F.3d 626 Cite as: 577 U. S. ____ (2016) 7 Opinion of the Court (CA7 2000). The Government further observes that the generally small size of the initial partial fee—here, $0.64, App. to Pet. for Cert. 21a—provides scant disincentive, on its own, for multiple filings. Responding to Bruce’s observation that, for a prisoner with more than five charges, even the per-case approach resorts to sequential payments, the Government agrees, but tells us that this scenario arises infrequently. “[M]ost prisoners,” the Government states, “would accrue three strikes (and therefore be required to pay the full filing fees upfront) by the time they incurred the obligation for their sixth case.” Brief for Respondents 29. Finally, answering Bruce’s concern that the per-case approach could leave a prisoner without money for ameni- ties, the Government points out that prisons “are constitu- tionally bound to provide inmates with adequate food, clothing, shelter, and medical care,” id., at 48 (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)), and must furnish “ ‘paper and pen to draft legal documents’ and ‘stamps to mail them,’ ” Brief for Respondents 48 (quoting Bounds v. Smith, 430 U.S. 817, 824, 825 (1977)). More- over, the Government notes, the Federal Bureau of Pris- ons (BOP) “goes beyond those requirements,” providing inmates “articles necessary for maintaining personal hygiene,” and free postage “not only for legal mailings but also to enable the inmate to maintain community ties.” Brief for Respondents 48, n. 21 (internal quotation marks omitted). III The Circuits following the per-case approach, we con- clude, better comprehend the statute. Just as §1915(b)(1) calls for assessment of “an initial partial filing fee” each time a prisoner “brings a civil action or files an appeal” (emphasis added), so its allied provision, §1915(b)(2), triggered immediately after, calls for “monthly payments 8 BRUCE v. SAMUELS Opinion of the Court of 20 percent of the preceding month’s income” simultane- ously for each action pursued. The other two paragraphs of §1915(b) confirm that the subsection as a whole is writ- ten from the perspective of a single case. See §1915(b)(3) (imposing a ceiling on fees permitted “for the commence- ment of a civil action or an appeal” (emphasis added)); §1915(b)(4) (protecting the right to “brin[g] a civil action or appea[l] a civil or criminal judgment” (emphasis added)). There is scant indication that the statute’s perspective shifts partway through paragraph (2).4 Bruce’s extratextual points do not warrant a departure from the interpretation suggested by the text and context. The per-case approach more vigorously serves the statutory objective of containing prisoner litigation, while the safety- valve provision, see supra, at 4, ensures against denial of access to federal courts. Bruce’s administrability concerns carry little weight given reports from several States that the per-case approach is unproblematic. See Brief for State of Michigan et al. as Amici Curiae 18–20. * * * For the reasons stated, the judgment of the Court of Appeals for the District of Columbia Circuit is Affirmed. —————— 4 Useof the plural “fees” in that paragraph does not persuade us oth- erwise. Congress has been less than meticulous in its employment of the singular “fee” and the plural “fees,” sometimes using those words interchangeably. See, e.g., 28 U.S. C. §1930(a) (“The parties commenc- ing a case under title 11 shall pay to the clerk . . . the following filing fees: [enumerating several options]. In addition to the filing fee paid to the clerk, [an additional fee shall be paid].” (emphasis added)); 42 U.S. C. §1988(b) (“[T]he court . . . may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer . . . such officer shall not be held liable for any costs, including attorney’s fees . . . .” (emphasis added)). See also Dictionary Act, 1 U.S. C. §1 (“In determining the meaning of any Act of Congress, unless the context indicates otherwise—words import- ing the singular include and apply to several persons, parties, or things; words importing the plural include the singular . . . .”)

This case concerns the payment of filing fees for civil actions commenced by prisoners in federal courts. Until 1996, indigent prisoners, like other indigent persons, could file a civil action without paying any filing fee. See 28 U.S. C. In the Prison Litigation Reform Act of 1995 (PLRA), –66, Congress placed sev- eral limitations on prisoner litigation in federal courts. Among those limitations, Congress required prisoners qualified to proceed in forma pauperis nevertheless to pay an initial partial filing fee. That fee is statutorily set as “20 percent of the greater of ” the average monthly depos- its in the prisoner’s account or the average monthly bal- ance of the account over the preceding six months. Thereafter, to complete payment of the filing fee, prisoners must pay, in monthly installments, “20 percent of the preceding month’s income credited to the prisoner’s account.” The initial partial filing fee may not be exacted if the prisoner has no means to pay it, and no monthly installments are required unless the prisoner has more than $10 in his account, 2 BRUCE v. SAMUELS Opinion of the Court It is undisputed that the initial partial filing fee is to be assessed on a per-case basis, i.e., each time the prisoner files a lawsuit. In contest here is the calculation of subse- quent monthly installment payments. Petitioner Antoine Bruce urges a per-prisoner approach under which he would pay 20 percent of his monthly income regardless of the number of cases he has filed. The Government urges, and the court below followed, a per-case approach under which a prisoner would pay 20 percent of his monthly income for each case he has filed. Courts of Appeals have divided on which of these two approaches orders.1 To resolve the conflict, we granted certiorari. 576 U. S. (2015). We hold that monthly installment payments, like the initial partial payment, are to be assessed on a per-case basis. Nothing in current design supports treating a prisoner’s second or third action unlike his first lawsuit. I A In 1892, Congress enacted the in forma pauperis (IFP) statute, now codified at 28 U.S. C. “to ensure that indigent litigants have meaningful access to the federal courts.” Reacting to “a sharp rise in prisoner litigation,” Woodford —————— 1 ( per curiam); overruled in part on other grounds by and ; ; ; and (adopting per-case approach), with 276–277 (CA2 2001); 427– (CA3 2015); and F.3d 237, (adopting per-prisoner approach). Cite as: 577 U. S. (2016) 3 Opinion of the Court v. Ngo, Congress in 1996 enacted the PLRA, which installed a variety of measures “designed to filter out the bad claims [filed by prisoners] and facili- tate consideration of the good,” Coleman v. Tollefson, 575 U. S. (2015) (slip op., at 3) ; alteration in original). Among those measures, Congress required prisoners to pay filing fees for the suits or appeals they launch. The provisions on fee payment, set forth in read: “(1) [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be re- quired to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of— “(A) the average monthly deposits to the prisoner’s ac- count; or “(B) the average monthly balance in the prisoner’s ac- count for the 6-month period immediately preceding the filing of the complaint or notice of appeal. “(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account. The agency having custody of the prisoner shall forward payments from the pris- oner’s account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.” The monthly installment scheme described in also applies to costs awarded against prisoners when they are judgment losers. )(2)(B). To further contain prisoner litigation, the PLRA intro- duced a three-strikes provision: Prisoners whose suits or appeals are dismissed three or more times as frivolous, malicious, or failing to state a claim on which relief may 4 BRUCE v. SAMUELS Opinion of the Court be granted are barred from proceeding IFP “unless the prisoner is under imminent danger of serious physical injury.” In other words, for most three strikers, all future filing fees become payable in full upfront. Congress included in its 1996 overhaul of a safety- valve provision to ensure that the fee requirements would not bar access to the courts: “In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.” (b)(4). B Petitioner Antoine Bruce, a federal inmate serving a 15- year sentence, is a frequent litigant.2 In the instant case, Bruce challenges his placement in a special management unit at the Federal Correctional Institution in Talladega, Alabama. 3–43 Bruce had previously incurred filing-fee obliga- tions in other cases and maintained that the monthly filing-fee payments for this case would not become due until those prior obligations were satisfied. The Court of Appeals for the District of Columbia Circuit, whose decision is before us for review, rejected Bruce’s argument. –10. Bruce must make monthly filing- fee payments in this case, the court held, simultaneously with such payments in earlier commenced cases. —————— 2 At oral argument, Bruce’s counsel informed the Court that Bruce had framed or joined 19 prison-litigation cases, although “the last seven or so have not been filed because [Bruce] had had three strikes by the 12th.” Tr. of Oral Arg. 23. See Brief for Respondents 40 (stating that Bruce filed three new lawsuits during the pendency of his case before this Court). 3 The Court of Appeals construed the pleadings in this case as a peti- tion for a writ of We assume without deciding that a mandamus petition qualifies as a “civil action” or “appeal” for purposes of 28 U.S. C. (b). Cite as: 577 U. S. (2016) 5 Opinion of the Court We agree with the appeals court that calls for simultaneous, not sequential, recoupment of multiple filing fees. II The IFP statute does not explicitly address whether multiple filing fees (after the initial partial payment) should be paid simultaneously or sequentially. Bruce and the Government present competing interpretations. A In support of the per-prisoner approach, Bruce relies principally on what he sees as a significant contrast be- tween the singular “clerk” and the plural “fees” as those nouns appear in 28 U.S. C. That provision requires payments to be forwarded “to the clerk of the court until the filing fees are paid.” (empha- sis added). Even when more than one filing fee is owed, Bruce contends, the statute instructs that only one clerk will receive payment each month; in other words, fee payments are to be made sequentially rather than simultaneously. The initial partial payment, which is charged on a per- case basis, plus the three-strikes provision, Bruce urges, together suffice to satisfy the PLRA’s purpose, which is to “force prisoners to think twice about the case and not just file reflexively,” 141 Cong. Rec. 14572 (1995) (remarks of Sen. Kyl). The additional economic disincentive that the per-case approach would occasion, Bruce asserts, could excessively encumber access to federal courts. Furthermore, Bruce points out, the per-case approach breaks down when a prisoner incurs more than five obliga- tions. Nothing will be left in the account to pay the sixth fee, Bruce observes. Necessarily, therefore, its payment will be entirely deferred. Why treat the second obligation unlike the sixth, Bruce asks. Isn’t the statute sensibly 6 BRUCE v. SAMUELS Opinion of the Court read to render all monthly payments sequential? Bruce notes in this regard that, under the per-case approach, his ability to use his account to purchase amenities will be progressively curtailed; indeed, the account might be reduced to zero upon his filing or joining a fifth case. Finally, Bruce argues, administrative difficulties coun- sel against the per-case approach. Costs could dwarf the monetary yield if prisons, under a per-case regime, were obliged to send as many as five checks to five different courts each month. And the problems faced by state- prison officials—who sometimes must choose which of several claims on a prisoner’s income (e.g., child-support, medical copayments) should take precedence—would be exacerbated under a system demanding simultaneous payment of multiple litigation charges. B The Government emphasizes that as a whole has a single-case focus, providing instructions for each case. It would be anomalous, the Government urges, to treat paragraph (b)(1)’s initial partial payment, which Bruce concedes is directed at a single case, differently than paragraph (b)(2)’s subsequent monthly payments. The two paragraphs, the Government observes, are linked by paragraph (b)(2)’s opening clause: “After payment of the initial partial filing fee.” The per-case approach, the Government adds, better comports with the purpose of the PLRA to deter frivolous suits. See (Easterbrook, J.) (“Otherwise a prisoner could file multiple suits for the price of one, postponing payment of the fees for later-filed suits until after the end of impris- onment (and likely avoiding them altogether [because fees are often uncollectable on a prisoner’s release]).”), over- ruled in part on other grounds by 209 F.3d 1025 and Cite as: 577 U. S. (2016) 7 Opinion of the Court The Government further observes that the generally small size of the initial partial fee—here, $0.64, App. to Pet. for Cert. 21a—provides scant disincentive, on its own, for multiple filings. Responding to Bruce’s observation that, for a prisoner with more than five charges, even the per-case approach resorts to sequential payments, the Government agrees, but tells us that this scenario arises infrequently. “[M]ost prisoners,” the Government states, “would accrue three strikes (and therefore be required to pay the full filing fees upfront) by the time they incurred the obligation for their sixth case.” Brief for Respondents 29. Finally, answering Bruce’s concern that the per-case approach could leave a prisoner without money for ameni- ties, the Government points out that prisons “are constitu- tionally bound to provide inmates with adequate food, clothing, shelter, and medical care,” 8 ), and must furnish “ ‘paper and pen to draft legal documents’ and ‘stamps to mail them,’ ” Brief for Respondents 48 ). More- over, the Government notes, the Federal Bureau of Pris- ons (BOP) “goes beyond those requirements,” providing inmates “articles necessary for maintaining personal hygiene,” and free postage “not only for legal mailings but also to enable the inmate to maintain community ties.” Brief for Respondents 48, n. 21 (internal quotation marks omitted). III The Circuits following the per-case approach, we con- clude, better comprehend the statute. Just as (b)(1) calls for assessment of “an initial partial filing fee” each time a prisoner “brings a civil action or files an appeal” (emphasis added), so its allied provision, triggered immediately after, calls for “monthly payments 8 BRUCE v. SAMUELS Opinion of the Court of 20 percent of the preceding month’s income” simultane- ously for each action pursued. The other two paragraphs of (b) confirm that the subsection as a whole is writ- ten from the perspective of a single case. See (b)(3) (imposing a ceiling on fees permitted “for the commence- ment of a civil action or an appeal” (emphasis added)); (b)(4) (protecting the right to “brin[g] a civil action or appea[l] a civil or criminal judgment” (emphasis added)). There is scant indication that the statute’s perspective shifts partway through paragraph (2).4 Bruce’s extratextual points do not warrant a departure from the interpretation suggested by the text and context. The per-case approach more vigorously serves the statutory objective of containing prisoner litigation, while the safety- valve provision, see ensures against denial of access to federal courts. Bruce’s administrability concerns carry little weight given reports from several States that the per-case approach is unproblematic. See Brief for State of Michigan et al. as Amici Curiae 18–20. * * * For the reasons stated, the judgment of the Court of Appeals for the District of Columbia Circuit is Affirmed. —————— 4 Useof the plural “fees” in that paragraph does not persuade us oth- erwise. Congress has been less than meticulous in its employment of the singular “fee” and the plural “fees,” sometimes using those words interchangeably. See, e.g., 28 U.S. C. (“The parties commenc- ing a case under title 11 shall pay to the clerk the following filing fees: [enumerating several options]. In addition to the filing fee paid to the clerk, [an additional fee shall be paid].” (emphasis added)); 42 U.S. C. (“[T]he court may allow the prevailing party a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer such officer shall not be held liable for any costs, including attorney’s fees” (emphasis added)). See also Dictionary Act, 1 U.S. C. (“In determining the meaning of any Act of Congress, unless the context indicates otherwise—words import- ing the singular include and apply to several persons, parties, or things; words importing the plural include the singular”)

Justice Thomas

majority

Aetna Health Inc. v. Davila

2004-06-21

https://www.courtlistener.com/opinion/136991/aetna-health-inc-v-davila/

https://www.courtlistener.com/api/rest/v3/clusters/136991/

2003-076

In these consolidated cases, two individuals sued their respective health maintenance organizations (HMOs) for alleged failures to exercise ordinary care in the handling of coverage decisions, in violation of a duty imposed by the Texas Health Care Liability Act (THCLA), Tex. Civ. Prac. & Rem. Code Ann. §§ 88.001-88.003 (West 2004 Supp. Pamphlet). We granted certiorari to decide whether the individuals' causes of action are completely pre-empted by the "interlocking, interrelated, and interdependent remedial scheme," Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985), found at § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891, as amended, 29 U.S. C. § 1132(a) et seq. 540 U.S. 981 (2003). We hold that the causes of action are completely pre-empted and hence removable from state to federal court. The Court of Appeals, having reached a contrary conclusion, is reversed. I A Respondent Juan Davila is a participant, and respondent Ruby Calad is a beneficiary, in ERISA-regulated employee benefit plans. Their respective plan sponsors had entered into agreements with petitioners, Aetna Health Inc. and CIGNA Healthcare of Texas, Inc., to administer the plans. Under Davila's plan, for instance, Aetna reviews requests for coverage and pays providers, such as doctors, hospitals, and nursing homes, which perform covered services for members; under Calad's plan sponsor's agreement, CIGNA is responsible for plan benefits and coverage decisions. Respondents both suffered injuries allegedly arising from Aetna's and CIGNA's decisions not to provide coverage for *205 certain treatment and services recommended by respondents' treating physicians. Davila's treating physician prescribed Vioxx to remedy Davila's arthritis pain, but Aetna refused to pay for it. Davila did not appeal or contest this decision, nor did he purchase Vioxx with his own resources and seek reimbursement. Instead, Davila began taking Naprosyn, from which he allegedly suffered a severe reaction that required extensive treatment and hospitalization. Calad underwent surgery, and although her treating physician recommended an extended hospital stay, a CIGNA discharge nurse determined that Calad did not meet the plan's criteria for a continued hospital stay. CIGNA consequently denied coverage for the extended hospital stay. Calad experienced postsurgery complications forcing her to return to the hospital. She alleges that these complications would not have occurred had CIGNA approved coverage for a longer hospital stay. Respondents brought separate suits in Texas state court against petitioners. Invoking THCLA § 88.002(a), respondents argued that petitioners' refusal to cover the requested services violated their "duty to exercise ordinary care when making health care treatment decisions," and that these refusals "proximately caused" their injuries. Ibid. Petitioners removed the cases to Federal District Courts, arguing that respondents' causes of action fit within the scope of, and were therefore completely pre-empted by, ERISA § 502(a). The respective District Courts agreed, and declined to remand the cases to state court. Because respondents refused to amend their complaints to bring explicit ERISA claims, the District Courts dismissed the complaints with prejudice. B Both Davila and Calad appealed the refusals to remand to state court. The United States Court of Appeals for the Fifth Circuit consolidated their cases with several others raising similar issues. The Court of Appeals recognized *206 that state causes of action that "duplicat[e] or fal[l] within the scope of an ERISA § 502(a) remedy" are completely pre-empted and hence removable to federal court. Roark v. Humana, Inc., 307 F.3d 298, 305 (2002) (internal quotation marks omitted). After examining the causes of action available under § 502(a), the Court of Appeals determined that respondents' claims could possibly fall under only two: § 502(a)(1)(B), which provides a cause of action for the recovery of wrongfully denied benefits, and § 502(a)(2), which allows suit against a plan fiduciary for breaches of fiduciary duty to the plan. Analyzing § 502(a)(2) first, the Court of Appeals concluded that, under Pegram v. Herdrich, 530 U.S. 211 (2000), the decisions for which petitioners were being sued were "mixed eligibility and treatment decisions" and hence were not fiduciary in nature. 307 F.3d, at 307-308.[1] The Court of Appeals next determined that respondents' claims did not fall within § 502(a)(1)(B)'s scope. It found significant that respondents "assert tort claims," while § 502(a)(1)(B) "creates a cause of action for breach of contract," id., at 309, and also that respondents "are not seeking reimbursement for benefits denied them," but rather request "tort damages" arising from "an external, statutorily imposed duty of `ordinary care,'" ibid. From Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355 (2002), the Court of Appeals derived the principle that complete pre-emption is limited to situations in which "States . . . duplicate the causes of action listed in ERISA § 502(a)," and concluded that "[b]ecause the THCLA does not provide an action for collecting benefits," it fell outside the scope of § 502(a)(1)(B). 307 F.3d, at 310-311. *207 II A Under the removal statute, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant" to federal court. 28 U.S. C. § 1441(a). One category of cases of which district courts have original jurisdiction is "[f]ederal question" cases: cases "arising under the Constitution, laws, or treaties of the United States." § 1331. We face in these cases the issue whether respondents' causes of action arise under federal law. Ordinarily, determining whether a particular case arises under federal law turns on the "`well-pleaded complaint'" rule. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 9-10 (1983). The Court has explained that "whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute[,] . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose." Taylor v. Anderson, 234 U.S. 74, 75-76 (1914). In particular, the existence of a federal defense normally does not create statutory "arising under" jurisdiction, Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908), and "a defendant may not [generally] remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law." Franchise Tax Bd., supra, at 10. There is an exception, however, to the well-pleaded complaint rule. "[W]hen a federal statute wholly displaces the state-law cause of action through complete pre-emption," the state claim can be removed. Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003). This is so because "[w]hen *208 the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law." Ibid. ERISA is one of these statutes. B Congress enacted ERISA to "protect . . . the interests of participants in employee benefit plans and their beneficiaries" by setting out substantive regulatory requirements for employee benefit plans and to "provid[e] for appropriate remedies, sanctions, and ready access to the Federal courts." 29 U.S. C. § 1001(b). The purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans. To this end, ERISA includes expansive pre-emption provisions, see ERISA § 514, 29 U.S. C. § 1144, which are intended to ensure that employee benefit plan regulation would be "exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523 (1981). ERISA's "comprehensive legislative scheme" includes "an integrated system of procedures for enforcement." Russell, 473 U. S., at 147 (internal quotation marks omitted). This integrated enforcement mechanism, ERISA § 502(a), 29 U.S. C. § 1132(a), is a distinctive feature of ERISA, and essential to accomplish Congress' purpose of creating a comprehensive statute for the regulation of employee benefit plans. As the Court said in Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987): "[T]he detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan *209 participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. `The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.'" Id., at 54 (quoting Russell, supra, at 146). Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted. See 481 U.S., at 54-56; see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 143-145 (1990). The pre-emptive force of ERISA § 502(a) is still stronger. In Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-66 (1987), the Court determined that the similarity of the language used in the Labor Management Relations Act, 1947 (LMRA), and ERISA, combined with the "clear intention" of Congress "to make § 502(a)(1)(B) suits brought by participants or beneficiaries federal questions for the purposes of federal court jurisdiction in like manner as § 301 of the LMRA," established that ERISA § 502(a)(1)(B)'s pre-emptive force mirrored the pre-emptive force of LMRA § 301. Since LMRA § 301 converts state causes of action into federal ones for purposes of determining the propriety of removal, see Avco Corp. v. Machinists, 390 U.S. 557 (1968), so too does ERISA § 502(a)(1)(B). Thus, the ERISA civil enforcement mechanism is one of those provisions with such "extraordinary pre-emptive power" that it "converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Metropolitan Life, 481 U. S., at 65-66. Hence, "causes of action within the scope of the civil enforcement provisions of § 502(a) [are] removable to federal court." Id., at 66. *210 III A ERISA § 502(a)(1)(B) provides: "A civil action may be brought — (1) by a participant or beneficiary — . . . (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S. C. § 1132(a)(1)(B). This provision is relatively straightforward. If a participant or beneficiary believes that benefits promised to him under the terms of the plan are not provided, he can bring suit seeking provision of those benefits. A participant or beneficiary can also bring suit generically to "enforce his rights" under the plan, or to clarify any of his rights to future benefits. Any dispute over the precise terms of the plan is resolved by a court under a de novo review standard, unless the terms of the plan "giv[e] the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). It follows that if an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls "within the scope of" ERISA § 502(a)(1)(B). Metropolitan Life, supra, at 66. In other words, if an individual, at some point in time, could have brought his claim under ERISA § 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant's actions, then the individual's cause of action is completely pre-empted by ERISA § 502(a)(1)(B). *211 To determine whether respondents' causes of action fall "within the scope" of ERISA § 502(a)(1)(B), we must examine respondents' complaints, the statute on which their claims are based (the THCLA), and the various plan documents. Davila alleges that Aetna provides health coverage under his employer's health benefits plan. App. H to Pet. for Cert. in No. 02-1845, p. 67a, ¶ 11. Davila also alleges that after his primary care physician prescribed Vioxx, Aetna refused to pay for it. Id., at 67a, ¶ 12. The only action complained of was Aetna's refusal to approve payment for Davila's Vioxx prescription. Further, the only relationship Aetna had with Davila was its partial administration of Davila's employer's benefit plan. See App. JA-25, JA-31, JA-39 to JA-40, JA-45 to JA-48, JA-108. Similarly, Calad alleges that she receives, as her husband's beneficiary under an ERISA-regulated benefit plan, health coverage from CIGNA. Id., at JA-184, ¶ 17. She alleges that she was informed by CIGNA, upon admittance into a hospital for major surgery, that she would be authorized to stay for only one day. Id., at JA-184, ¶ 18. She also alleges that CIGNA, acting through a discharge nurse, refused to authorize more than a single day despite the advice and recommendation of her treating physician. Id., at JA-185, ¶¶ 20, 21. Calad contests only CIGNA's decision to refuse coverage for her hospital stay. Id., at JA-185, ¶ 20. And, as in Davila's case, the only connection between Calad and CIGNA is CIGNA's administration of portions of Calad's ERISA-regulated benefit plan. Id., at JA-219 to JA-221. It is clear, then, that respondents complain only about denials of coverage promised under the terms of ERISA-regulated employee benefit plans. Upon the denial of benefits, respondents could have paid for the treatment themselves and then sought reimbursement through a § 502(a)(1)(B) action, or sought a preliminary injunction, see Pryzbowski v. U. S. Healthcare, Inc., 245 F.3d 266, 274 (CA3 *212 2001) (giving examples where federal courts have issued such preliminary injunctions).[2] Respondents contend, however, that the complained-of actions violate legal duties that arise independently of ERISA or the terms of the employee benefit plans at issue in these cases. Both respondents brought suit specifically under the THCLA, alleging that petitioners "controlled, influenced, participated in and made decisions which affected the quality of the diagnosis, care, and treatment provided" in a manner that violated "the duty of ordinary care set forth in §§ 88.001 and 88.002." App. H to Pet. for Cert. in No. 02-1845, at 69a, ¶ 18; see also App. JA-187, ¶ 28. Respondents contend that this duty of ordinary care is an independent legal duty. They analogize to this Court's decisions interpreting LMRA § 301, 29 U.S. C. § 185, with particular focus on Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (suit for breach of individual employment contract, even if defendant's action also constituted a breach of an entirely separate collective-bargaining agreement, not pre-empted by LMRA § 301). Because this duty of ordinary care arises independently of any duty imposed by ERISA or the plan terms, the argument goes, any civil action to enforce this duty is not within the scope of the ERISA civil enforcement mechanism. The duties imposed by the THCLA in the context of these cases, however, do not arise independently of ERISA or the plan terms. The THCLA does impose a duty on managed care entities to "exercise ordinary care when making health care treatment decisions," and makes them liable for damages proximately caused by failures to abide by that duty. *213 § 88.002(a). However, if a managed care entity correctly concluded that, under the terms of the relevant plan, a particular treatment was not covered, the managed care entity's denial of coverage would not be a proximate cause of any injuries arising from the denial. Rather, the failure of the plan itself to cover the requested treatment would be the proximate cause.[3] More significantly, the THCLA clearly states that "[t]he standards in Subsections (a) and (b) create no obligation on the part of the health insurance carrier, health maintenance organization, or other managed care entity to provide to an insured or enrollee treatment which is not covered by the health care plan of the entity." § 88.002(d). Hence, a managed care entity could not be subject to liability under the THCLA if it denied coverage for any treatment not covered by the health care plan that it was administering. Thus, interpretation of the terms of respondents' benefit plans forms an essential part of their THCLA claim, and THCLA liability would exist here only because of petitioners' administration of ERISA-regulated benefit plans. Petitioners' potential liability under the THCLA in these cases, then, derives entirely from the particular rights and obligations established by the benefit plans. So, unlike the state-law claims in Caterpillar, supra, respondents' THCLA causes of action are not entirely independent of the federally regulated contract itself. Cf. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 217 (1985) (state-law tort of bad-faith handling of insurance claim pre-empted by LMRA § 301, since the "duties imposed and rights established through the state tort . . . derive[d] from the rights and obligations established by the contract"); Steelworkers v. Rawson, 495 U. S. *214 362, 371 (1990) (state-law tort action brought due to alleged negligence in the inspection of a mine was pre-empted, as the duty to inspect the mine arose solely out of the collective-bargaining agreement). Hence, respondents bring suit only to rectify a wrongful denial of benefits promised under ERISA-regulated plans, and do not attempt to remedy any violation of a legal duty independent of ERISA. We hold that respondents' state causes of action fall "within the scope of" ERISA § 502(a)(1)(B), Metropolitan Life, 481 U. S., at 66, and are therefore completely pre-empted by ERISA § 502 and removable to federal district court.[4] B The Court of Appeals came to a contrary conclusion for several reasons, all of them erroneous. First, the Court of Appeals found significant that respondents "assert a tort claim for tort damages" rather than "a contract claim for contract damages," and that respondents "are not seeking reimbursement for benefits denied them." 307 F.3d, at 309. But, distinguishing between pre-empted and non-pre-empted claims based on the particular label affixed to them would "elevate form over substance and allow parties to evade" the pre-emptive scope of ERISA simply "by relabeling their contract claims as claims for tortious breach of contract." Allis-Chalmers, supra, at 211. Nor can the mere fact that the state cause of action attempts to authorize remedies beyond those authorized by ERISA § 502(a) put the cause *215 of action outside the scope of the ERISA civil enforcement mechanism. In Pilot Life, Metropolitan Life, and Ingersoll-Rand, the plaintiffs all brought state claims that were labeled either tort or tort-like. See Pilot Life, 481 U. S., at 43 (suit for, inter alia, "`Tortious Breach of Contract'"); Metropolitan Life, supra, at 61-62 (suit requesting damages for "mental anguish caused by breach of [the] contract"); Ingersoll-Rand, 498 U. S., at 136 (suit brought under various tort and contract theories). And, the plaintiffs in these three cases all sought remedies beyond those authorized under ERISA. See Pilot Life, supra, at 43 (compensatory and punitive damages); Metropolitan Life, supra, at 61 (mental anguish); Ingersoll-Rand, supra, at 136 (punitive damages, mental anguish). And, in all these cases, the plaintiffs' claims were pre-empted. The limited remedies available under ERISA are an inherent part of the "careful balancing" between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans. Pilot Life, supra, at 55. Second, the Court of Appeals believed that "the wording of [respondents'] plans is immaterial" to their claims, as "they invoke an external, statutorily imposed duty of `ordinary care.'" 307 F.3d, at 309. But as we have already discussed, the wording of the plans is certainly material to their state causes of action, and the duty of "ordinary care" that the THCLA creates is not external to their rights under their respective plans. Ultimately, the Court of Appeals rested its decision on one line from Rush Prudential. There, we described our holding in Ingersoll-Rand as follows: "[W]hile state law duplicated the elements of a claim available under ERISA, it converted the remedy from an equitable one under § 1132(a)(3) (available exclusively in federal district courts) into a legal one for money damages (available in a state tribunal)." 536 U.S., at 379. The point of this sentence was to describe why the state cause of action in Ingersoll-Rand was pre-empted by ERISA § 502(a): It was pre-empted because it attempted *216 to convert an equitable remedy into a legal remedy. Nowhere in Rush Prudential did we suggest that the pre-emptive force of ERISA § 502(a) is limited to the situation in which a state cause of action precisely duplicates a cause of action under ERISA § 502(a). Nor would it be consistent with our precedent to conclude that only strictly duplicative state causes of action are pre-empted. Frequently, in order to receive exemplary damages on a state claim, a plaintiff must prove facts beyond the bare minimum necessary to establish entitlement to an award. Cf. Allis-Chalmers, 471 U. S., at 217 (bad-faith refusal to honor a claim needed to be proved in order to recover exemplary damages). In order to recover for mental anguish, for instance, the plaintiffs in Ingersoll-Rand and Metropolitan Life would presumably have had to prove the existence of mental anguish; there is no such element in an ordinary suit brought under ERISA § 502(a)(1)(B). See Ingersoll-Rand, supra, at 136; Metropolitan Life, supra, at 61. This did not save these state causes of action from pre-emption. Congress' intent to make the ERISA civil enforcement mechanism exclusive would be undermined if state causes of action that supplement the ERISA § 502(a) remedies were permitted, even if the elements of the state cause of action did not precisely duplicate the elements of an ERISA claim. C Respondents also argue—for the first time in their brief to this Court—that the THCLA is a law that regulates insurance, and hence that ERISA § 514(b)(2)(A) saves their causes of action from pre-emption (and thereby from complete pre-emption).[5] This argument is unavailing. The existence of *217 a comprehensive remedial scheme can demonstrate an "overpowering federal policy" that determines the interpretation of a statutory provision designed to save state law from being pre-empted. Rush Prudential, 536 U. S., at 375. ERISA's civil enforcement provision is one such example. See ibid. As this Court stated in Pilot Life, "our understanding of [§ 514(b)(2)(A)] must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA § 502(a), 29 U.S. C. § 1132(a)." 481 U.S., at 52. The Court concluded that "[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA." Id., at 54. The Court then held, based on "the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly, the clear expression of congressional intent that ERISA's civil enforcement scheme be exclusive, . . . that [the plaintiff's] state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by § 514(b)(2)(A)." Id., at 57 (emphasis added). Pilot Life's reasoning applies here with full force. Allowing respondents to proceed with their state-law suits would "pose an obstacle to the purposes and objectives of Congress." Id., at 52. As this Court has recognized in both Rush Prudential and Pilot Life, ERISA § 514(b)(2)(A) must be interpreted in light of the congressional intent to create an exclusive federal remedy in ERISA § 502(a). Under ordinary principles of conflict pre-emption, then, even a state law that can arguably be characterized as "regulating insurance" will be pre-empted if it provides a separate vehicle to assert *218 a claim for benefits outside of, or in addition to, ERISA's remedial scheme. IV Respondents, their amici, and some Courts of Appeals have relied heavily upon Pegram v. Herdrich, 530 U.S. 211 (2000), in arguing that ERISA does not pre-empt or completely pre-empt state suits such as respondents'. They contend that Pegram makes it clear that causes of action such as respondents' do not "relate to [an] employee benefit plan," ERISA § 514(a), 29 U.S. C. § 1144(a), and hence are not pre-empted. See Brief for Respondents 35-38; Cicio v. Does, 321 F.3d 83, 100-104 (CA2 2003), cert. pending sub nom. Vytra Healthcare v. Cicio, No. 03-69 [REPORTER'S NOTE: See post, p. 933]; see also Land v. CIGNA Healthcare, 339 F.3d 1286, 1292-1294 (CA11 2003). Pegram cannot be read so broadly. In Pegram, the plaintiff sued her physician-owned-and-operated HMO (which provided medical coverage through plaintiff's employer pursuant to an ERISA-regulated benefit plan) and her treating physician, both for medical malpractice and for a breach of an ERISA fiduciary duty. See 530 U.S., at 215-216. The plaintiff's treating physician was also the person charged with administering plaintiff's benefits; it was she who decided whether certain treatments were covered. See id., at 228. We reasoned that the physician's "eligibility decision and the treatment decision were inextricably mixed." Id., at 229. We concluded that "Congress did not intend [the defendant HMO] or any other HMO to be treated as a fiduciary to the extent that it makes mixed eligibility decisions acting through its physicians." Id., at 231. A benefit determination under ERISA, though, is generally a fiduciary act. See Bruch, 489 U. S., at 111-113. "At common law, fiduciary duties characteristically attach to decisions about managing assets and distributing property to beneficiaries." Pegram, supra, at 231; cf. 2A A. Scott & W. Fratcher, Law of Trusts §§ 182, 183 (4th ed. 1987); *219 G. Bogert & G. Bogert, Law of Trusts & Trustees § 541 (rev.2d ed. 1993). Hence, a benefit determination is part and parcel of the ordinary fiduciary responsibilities connected to the administration of a plan. See Varity Corp. v. Howe, 516 U.S. 489, 512 (1996) (relevant plan fiduciaries owe a "fiduciary duty with respect to the interpretation of plan documents and the payment of claims"). The fact that a benefits determination is infused with medical judgments does not alter this result. Pegram itself recognized this principle. Pegram, in highlighting its conclusion that "mixed eligibility decisions" were not fiduciary in nature, contrasted the operation of "[t]raditional trustees administer[ing] a medical trust" and "physicians through whom HMOs act." 530 U.S., at 231-232. A traditional medical trust is administered by "paying out money to buy medical care, whereas physicians making mixed eligibility decisions consume the money as well." Ibid. And, significantly, the Court stated that "[p]rivate trustees do not make treatment judgments." Id., at 232. But a trustee managing a medical trust undoubtedly must make administrative decisions that require the exercise of medical judgment. Petitioners are not the employers of respondents' treating physicians and are therefore in a somewhat analogous position to that of a trustee for a traditional medical trust.[6] *220 ERISA itself and its implementing regulations confirm this interpretation. ERISA defines a fiduciary as any person "to the extent . . . he has any discretionary authority or discretionary responsibility in the administration of [an employee benefit] plan." § 3(21)(A)(iii), 29 U.S. C. § 1002(21)(A)(iii). When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries. See Varity Corp., supra, at 511 (plan administrator "engages in a fiduciary act when making a discretionary determination about whether a claimant is entitled to benefits under the terms of the plan documents"). Also, ERISA § 503, which specifies minimum requirements for a plan's claim procedure, requires plans to "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." 29 U.S. C. § 1133(2). This strongly suggests that the ultimate decisionmaker in a plan regarding an award of benefits must be a fiduciary and must be acting as a fiduciary when determining a participant's or beneficiary's claim. The relevant regulations also establish extensive requirements to ensure full and fair review of benefit denials. See 29 CFR § 2560.503-1 (2003). These regulations, on their face, apply equally to health benefit plans and other plans, and do not draw distinctions between medical and nonmedical benefits determinations. Indeed, the regulations strongly imply that benefits determinations involving medical judgments are, just as much as any other benefits determinations, actions by plan fiduciaries. See, e. g., § 2560.503-1(h)(3)(iii). Classifying any entity with discretionary authority over benefits determinations as anything but a plan fiduciary would thus conflict with ERISA's statutory and regulatory scheme. Since administrators making benefits determinations, even determinations based extensively on medical judgments, are ordinarily acting as plan fiduciaries, it was essential to Pegram's *221 conclusion that the decisions challenged there were truly "mixed eligibility and treatment decisions," 530 U.S., at 229, i. e., medical necessity decisions made by the plaintiff's treating physician qua treating physician and qua benefits administrator. Put another way, the reasoning of Pegram "only make[s] sense where the underlying negligence also plausibly constitutes medical maltreatment by a party who can be deemed to be a treating physician or such a physician's employer." Cicio, 321 F.3d, at 109 (Calabresi, J., dissenting in part). Here, however, petitioners are neither respondents' treating physicians nor the employers of respondents' treating physicians. Petitioners' coverage decisions, then, are pure eligibility decisions, and Pegram is not implicated. V We hold that respondents' causes of action, brought to remedy only the denial of benefits under ERISA-regulated benefit plans, fall within the scope of, and are completely pre-empted by, ERISA § 502(a)(1)(B), and thus removable to federal district court. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.[7] It is so ordered.

In these consolidated cases, two individuals sued their respective health maintenance organizations (HMOs) for alleged failures to exercise ordinary care in the handling of coverage decisions, in violation of a duty imposed by the Texas Health Care Liability Act (THCLA), We granted certiorari to decide whether the individuals' causes of action are completely pre-empted by the "interlocking, interrelated, and interdependent remedial scheme," Massachusetts Mut Ins found at 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), as amended, 29 US C 1132(a) et seq We hold that the causes of action are completely pre-empted and hence removable from state to federal court The Court of Appeals, having reached a contrary conclusion, is reversed I A Respondent Juan Davila is a participant, and respondent Ruby Calad is a beneficiary, in ERISA-regulated employee benefit plans Their respective plan sponsors had entered into agreements with petitioners, Aetna Health Inc and CIGNA Healthcare of Texas, Inc, to administer the plans Under Davila's plan, for instance, Aetna reviews requests for coverage and pays providers, such as doctors, hospitals, and nursing homes, which perform covered services for members; under Calad's plan sponsor's agreement, CIGNA is responsible for plan benefits and coverage decisions Respondents both suffered injuries allegedly arising from Aetna's and CIGNA's decisions not to provide coverage for *205 certain treatment and services recommended by respondents' treating physicians Davila's treating physician prescribed Vioxx to remedy Davila's arthritis pain, but Aetna refused to pay for it Davila did not appeal or contest this decision, nor did he purchase Vioxx with his own resources and seek reimbursement Instead, Davila began taking Naprosyn, from which he allegedly suffered a severe reaction that required extensive treatment and hospitalization Calad underwent surgery, and although her treating physician recommended an extended hospital stay, a CIGNA discharge nurse determined that Calad did not meet the plan's criteria for a continued hospital stay CIGNA consequently denied coverage for the extended hospital stay Calad experienced postsurgery complications forcing her to return to the hospital She alleges that these complications would not have occurred had CIGNA approved coverage for a longer hospital stay Respondents brought separate suits in Texas state court against petitioners Invoking THCLA 002(a), respondents argued that petitioners' refusal to cover the requested services violated their "duty to exercise ordinary care when making health care treatment decisions," and that these refusals "proximately caused" their injuries Petitioners removed the cases to Federal District Courts, arguing that respondents' causes of action fit within the scope of, and were therefore completely pre-empted by, ERISA 502(a) The respective District Courts agreed, and declined to remand the cases to state court Because respondents refused to amend their complaints to bring explicit ERISA claims, the District Courts dismissed the complaints with prejudice B Both Davila and Calad appealed the refusals to remand to state court The United States Court of Appeals for the Fifth Circuit consolidated their cases with several others raising similar issues The Court of Appeals recognized *206 that state causes of action that "duplicat[e] or fal[l] within the scope of an ERISA 502(a) remedy" are completely pre-empted and hence removable to federal court After examining the causes of action available under 502(a), the Court of Appeals determined that respondents' claims could possibly fall under only two: 502(a)(1)(B), which provides a cause of action for the recovery of wrongfully denied benefits, and 502(a)(2), which allows suit against a plan fiduciary for breaches of fiduciary duty to the plan Analyzing 502(a)(2) first, the Court of Appeals concluded that, under the decisions for which petitioners were being sued were "mixed eligibility and treatment decisions" and hence were not fiduciary in -30[1] The Court of Appeals next determined that respondents' claims did not fall within 502(a)(1)(B)'s scope It found significant that respondents "assert tort claims," while 502(a)(1)(B) "creates a cause of action for breach of contract," and also that respondents "are not seeking reimbursement for benefits denied them," but rather request "tort damages" arising from "an external, statutorily imposed duty of `ordinary care,'" From Rush Prudential HMO, the Court of Appeals derived the principle that complete pre-emption is limited to situations in which "States duplicate the causes of action listed in ERISA 502(a)," and concluded that "[b]ecause the THCLA does not provide an action for collecting benefits," it fell outside the scope of 502(a)(1)(B) -311 *207 II A Under the removal statute, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant" to federal court 2 US C 1441(a) One category of cases of which district courts have original jurisdiction is "[f]ederal question" cases: cases "arising under the Constitution, laws, or treaties of the United States" 1331 We face in these cases the issue whether respondents' causes of action arise under federal law Ordinarily, determining whether a particular case arises under federal law turns on the "`well-pleaded complaint'" rule Franchise Tax Bd of Cal v Construction Laborers Vacation Trust for Southern Cal, 463 US 1, The Court has explained that "whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute[,] must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose" Taylor v Anderson, 234 US 74, In particular, the existence of a federal defense normally does not create statutory "arising under" jurisdiction, Louisville & Nashville R Co v Mottley, 211 US 149 and "a defendant may not [generally] remove a case to federal court unless the plaintiff's complaint establishes that the case `arises under' federal law" Franchise Tax Bd, There is an exception, however, to the well-pleaded complaint rule "[W]hen a federal statute wholly displaces the state-law cause of action through complete pre-emption," the state claim can be removed Beneficial Nat Bank v Anderson, 539 US 1, This is so because "[w]hen *20 the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law" ERISA is one of these statutes B Congress enacted ERISA to "protect the interests of participants in employee benefit plans and their beneficiaries" by setting out substantive regulatory requirements for employee benefit plans and to "provid[e] for appropriate remedies, sanctions, and ready access to the Federal courts" 29 US C 1001(b) The purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans To this end, ERISA includes expansive pre-emption provisions, see ERISA 514, 29 US C 1144, which are intended to ensure that employee benefit plan regulation would be "exclusively a federal concern" Alessi v Raybestos-Manhattan, Inc, 451 US 504, (191) ERISA's "comprehensive legislative scheme" includes "an integrated system of procedures for enforcement" 473 U S, at 147 This integrated enforcement mechanism, ERISA 502(a), 29 US C 1132(a), is a distinctive feature of ERISA, and essential to accomplish Congress' purpose of creating a comprehensive statute for the regulation of employee benefit plans As the Court said in Pilot Ins Co v Dedeaux, 41 US 41 (197): "[T]he detailed provisions of 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan *209 participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA `The six carefully integrated civil enforcement provisions found in 502(a) of the statute as finally enacted provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly'" Id, (quoting at ) Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted See 41 US, -56; see also Co v McClendon, 49 US 133, The pre-emptive force of ERISA 502(a) is still stronger In Metropolitan Ins Co v Taylor, 41 US 5, (197), the Court determined that the similarity of the language used in the Labor Management Relations Act, 1947 (LMRA), and ERISA, combined with the "clear intention" of Congress "to make 502(a)(1)(B) suits brought by participants or beneficiaries federal questions for the purposes of federal court jurisdiction in like manner as 301 of the LMRA," established that ERISA 502(a)(1)(B)'s pre-emptive force mirrored the pre-emptive force of LMRA 301 Since LMRA 301 converts state causes of action into federal ones for purposes of determining the propriety of removal, see Avco Corp v Machinists, 390 US 557 (196), so too does ERISA 502(a)(1)(B) Thus, the ERISA civil enforcement mechanism is one of those provisions with such "extraordinary pre-emptive power" that it "converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule" Metropolitan 41 U S, at Hence, "causes of action within the scope of the civil enforcement provisions of 502(a) [are] removable to federal court" Id, *210 III A ERISA 502(a)(1)(B) provides: "A civil action may be brought — (1) by a participant or beneficiary — (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan" 29 US C 1132(a)(1)(B) This provision is relatively straightforward If a participant or beneficiary believes that benefits promised to him under the terms of the plan are not provided, he can bring suit seeking provision of those benefits A participant or beneficiary can also bring suit generically to "enforce his rights" under the plan, or to clarify any of his rights to future benefits Any dispute over the precise terms of the plan is resolved by a court under a de novo review standard, unless the terms of the plan "giv[e] the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan" Firestone Tire & Rubber Co v 49 US 101, (199) It follows that if an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls "within the scope of" ERISA 502(a)(1)(B) Metropolitan In other words, if an individual, at some point in time, could have brought his claim under ERISA 502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant's actions, then the individual's cause of action is completely pre-empted by ERISA 502(a)(1)(B) *211 To determine whether respondents' causes of action fall "within the scope" of ERISA 502(a)(1)(B), we must examine respondents' complaints, the statute on which their claims are based (the THCLA), and the various plan documents Davila alleges that Aetna provides health coverage under his employer's health benefits plan App H to Pet for Cert in No 02-145, p 67a, ¶ 11 Davila also alleges that after his primary care physician prescribed Vioxx, Aetna refused to pay for it Id, at 67a, ¶ 12 The only action complained of was Aetna's refusal to approve payment for Davila's Vioxx prescription Further, the only relationship Aetna had with Davila was its partial administration of Davila's employer's benefit plan See App JA-25, JA-31, JA-39 to JA-40, JA-45 to JA-4, JA-10 Similarly, Calad alleges that she receives, as her husband's beneficiary under an ERISA-regulated benefit plan, health coverage from CIGNA Id, at JA-14, ¶ 17 She alleges that she was informed by CIGNA, upon admittance into a hospital for major surgery, that she would be authorized to stay for only one day Id, at JA-14, ¶ 1 She also alleges that CIGNA, acting through a discharge nurse, refused to authorize more than a single day despite the advice and recommendation of her treating physician Id, at JA-15, ¶¶ 20, 21 Calad contests only CIGNA's decision to refuse coverage for her hospital stay Id, at JA-15, ¶ 20 And, as in Davila's case, the only connection between Calad and CIGNA is CIGNA's administration of portions of Calad's ERISA-regulated benefit plan Id, at JA-219 to JA-221 It is clear, then, that respondents complain only about denials of coverage promised under the terms of ERISA-regulated employee benefit plans Upon the denial of benefits, respondents could have paid for the treatment themselves and then sought reimbursement through a 502(a)(1)(B) action, or sought a preliminary injunction, see Pryzbowski v U S Healthcare, Inc, 245 F3d 266, [2] Respondents contend, however, that the complained-of actions violate legal duties that arise independently of ERISA or the terms of the employee benefit plans at issue in these cases Both respondents brought suit specifically under the THCLA, alleging that petitioners "controlled, influenced, participated in and made decisions which affected the quality of the diagnosis, care, and treatment provided" in a manner that violated "the duty of ordinary care set forth in 001 and 002" App H to Pet for Cert in No 02-145, at 69a, ¶ 1; see also App JA-17, ¶ 2 Respondents contend that this duty of ordinary care is an independent legal duty They analogize to this Court's decisions interpreting LMRA 301, 29 US C 15, with particular focus on Caterpillar Inc v Williams, 42 US 36 (197) (suit for breach of individual employment contract, even if defendant's action also constituted a breach of an entirely separate collective-bargaining agreement, not pre-empted by LMRA 301) Because this duty of ordinary care arises independently of any duty imposed by ERISA or the plan terms, the argument goes, any civil action to enforce this duty is not within the scope of the ERISA civil enforcement mechanism The duties imposed by the THCLA in the context of these cases, however, do not arise independently of ERISA or the plan terms The THCLA does impose a duty on managed care entities to "exercise ordinary care when making health care treatment decisions," and makes them liable for damages proximately caused by failures to abide by that duty *213 002(a) However, if a managed care entity correctly concluded that, under the terms of the relevant plan, a particular treatment was not covered, the managed care entity's denial of coverage would not be a proximate cause of any injuries arising from the denial Rather, the failure of the plan itself to cover the requested treatment would be the proximate cause[3] More significantly, the THCLA clearly states that "[t]he standards in Subsections (a) and (b) create no obligation on the part of the health insurance carrier, health maintenance organization, or other managed care entity to provide to an insured or enrollee treatment which is not covered by the health care plan of the entity" 002(d) Hence, a managed care entity could not be subject to liability under the THCLA if it denied coverage for any treatment not covered by the health care plan that it was administering Thus, interpretation of the terms of respondents' benefit plans forms an essential part of their THCLA claim, and THCLA liability would exist here only because of petitioners' administration of ERISA-regulated benefit plans Petitioners' potential liability under the THCLA in these cases, then, derives entirely from the particular rights and obligations established by the benefit plans So, unlike the state-law claims in Caterpillar, respondents' THCLA causes of action are not entirely independent of the federally regulated contract itself Cf Allis-Chalmers Corp v Lueck, 471 US 202, (state-law tort of bad-faith handling of insurance claim pre-empted by LMRA 301, since the "duties imposed and rights established through the state tort derive[d] from the rights and obligations established by the contract"); Steelworkers v Rawson, 495 U S *214 362, 371 (state-law tort action brought due to alleged negligence in the inspection of a mine was pre-empted, as the duty to inspect the mine arose solely out of the collective-bargaining agreement) Hence, respondents bring suit only to rectify a wrongful denial of benefits promised under ERISA-regulated plans, and do not attempt to remedy any violation of a legal duty independent of ERISA We hold that respondents' state causes of action fall "within the scope of" ERISA 502(a)(1)(B), Metropolitan 41 U S, and are therefore completely pre-empted by ERISA 502 and removable to federal district court[4] B The Court of Appeals came to a contrary conclusion for several reasons, all of them erroneous First, the Court of Appeals found significant that respondents "assert a tort claim for tort damages" rather than "a contract claim for contract damages," and that respondents "are not seeking reimbursement for benefits denied them" 307 F3d, But, distinguishing between pre-empted and non-pre-empted claims based on the particular label affixed to them would "elevate form over substance and allow parties to evade" the pre-emptive scope of ERISA simply "by relabeling their contract claims as claims for tortious breach of contract" Allis-Chalmers, Nor can the mere fact that the state cause of action attempts to authorize remedies beyond those authorized by ERISA 502(a) put the cause *215 of action outside the scope of the ERISA civil enforcement mechanism In Pilot Metropolitan and the plaintiffs all brought state claims that were labeled either tort or tort-like See Pilot 41 U S, ; Metropolitan ; 49 U S, And, the plaintiffs in these three cases all sought remedies beyond those authorized under ERISA See Pilot ; Metropolitan ; And, in all these cases, the plaintiffs' claims were pre-empted The limited remedies available under ERISA are an inherent part of the "careful balancing" between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans Pilot Second, the Court of Appeals believed that "the wording of [respondents'] plans is immaterial" to their claims, as "they invoke an external, statutorily imposed duty of `ordinary care'" 307 F3d, But as we have already discussed, the wording of the plans is certainly material to their state causes of action, and the duty of "ordinary care" that the THCLA creates is not external to their rights under their respective plans Ultimately, the Court of Appeals rested its decision on one line from Rush Prudential There, we described our holding in as follows: "[W]hile state law duplicated the elements of a claim available under ERISA, it converted the remedy from an equitable one under 1132(a)(3) (available exclusively in federal district courts) into a legal one for money damages (available in a state tribunal)" 536 US, at 379 The point of this sentence was to describe why the state cause of action in was pre-empted by ERISA 502(a): It was pre-empted because it attempted *216 to convert an equitable remedy into a legal remedy Nowhere in Rush Prudential did we suggest that the pre-emptive force of ERISA 502(a) is limited to the situation in which a state cause of action precisely duplicates a cause of action under ERISA 502(a) Nor would it be consistent with our precedent to conclude that only strictly duplicative state causes of action are pre-empted Frequently, in order to receive exemplary damages on a state claim, a plaintiff must prove facts beyond the bare minimum necessary to establish entitlement to an award Cf Allis-Chalmers, 471 U S, at In order to recover for mental anguish, for instance, the plaintiffs in and Metropolitan would presumably have had to prove the existence of mental anguish; there is no such element in an ordinary suit brought under ERISA 502(a)(1)(B) See ; Metropolitan This did not save these state causes of action from pre-emption Congress' intent to make the ERISA civil enforcement mechanism exclusive would be undermined if state causes of action that supplement the ERISA 502(a) remedies were permitted, even if the elements of the state cause of action did not precisely duplicate the elements of an ERISA claim C Respondents also argue—for the first time in their brief to this Court—that the THCLA is a law that regulates insurance, and hence that ERISA 514(b)(2)(A) saves their causes of action from pre-emption (and thereby from complete pre-emption)[5] This argument is unavailing The existence of * a comprehensive remedial scheme can demonstrate an "overpowering federal policy" that determines the interpretation of a statutory provision designed to save state law from being pre-empted Rush Prudential, 536 U S, at 375 ERISA's civil enforcement provision is one such example See As this Court stated in Pilot "our understanding of [ 514(b)(2)(A)] must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA 502(a), 29 US C 1132(a)" 41 US, The Court concluded that "[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA" Id, The Court then held, based on "the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly, the clear expression of congressional intent that ERISA's civil enforcement scheme be exclusive, that [the plaintiff's] state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by 514(b)(2)(A)" Id, Pilot 's reasoning applies here with full force Allowing respondents to proceed with their state-law suits would "pose an obstacle to the purposes and objectives of Congress" Id, As this Court has recognized in both Rush Prudential and Pilot ERISA 514(b)(2)(A) must be interpreted in light of the congressional intent to create an exclusive federal remedy in ERISA 502(a) Under ordinary principles of conflict pre-emption, then, even a state law that can arguably be characterized as "regulating insurance" will be pre-empted if it provides a separate vehicle to assert *21 a claim for benefits outside of, or in addition to, ERISA's remedial scheme IV Respondents, their amici, and some Courts of Appeals have relied heavily upon in arguing that ERISA does not pre-empt or completely pre-empt state suits such as respondents' They contend that makes it clear that causes of action such as respondents' do not "relate to [an] employee benefit plan," ERISA 514(a), 29 US C 1144(a), and hence are not pre-empted See Brief for Respondents 35-3; Cicio v Does, 321 F3d 3, cert pending sub nom Vytra Healthcare v Cicio, No 03-69 [REPORTER'S NOTE: See post, p 933]; see also Land v CIGNA Healthcare, 339 F3d 126, cannot be read so broadly In the plaintiff sued her physician-owned-and-operated HMO (which provided medical coverage through plaintiff's employer pursuant to an ERISA-regulated benefit plan) and her treating physician, both for medical malpractice and for a breach of an ERISA fiduciary duty See 530 US, at 215-216 The plaintiff's treating physician was also the person charged with administering plaintiff's benefits; it was she who decided whether certain treatments were covered See at 22 We reasoned that the physician's "eligibility decision and the treatment decision were inextricably mixed" Id, We concluded that "Congress did not intend [the defendant HMO] or any other HMO to be treated as a fiduciary to the extent that it makes mixed eligibility decisions acting through its physicians" Id, A benefit determination under ERISA, though, is generally a fiduciary act See 49 U S, at 111-113 "At common law, fiduciary duties characteristically attach to decisions about managing assets and distributing property to beneficiaries" ; cf 2A A Scott & W Fratcher, Law of Trusts 12, 13 (4th ed 197); *219 G Bogert & G Bogert, Law of Trusts & Trustees 541 (rev2d ed 1993) Hence, a benefit determination is part and parcel of the ordinary fiduciary responsibilities connected to the administration of a plan See Varity Corp v Howe, 516 US 49, The fact that a benefits determination is infused with medical judgments does not alter this result itself recognized this principle in highlighting its conclusion that "mixed eligibility decisions" were not fiduciary in nature, contrasted the operation of "[t]raditional trustees administer[ing] a medical trust" and "physicians through whom HMOs act" 530 US, -232 A traditional medical trust is administered by "paying out money to buy medical care, whereas physicians making mixed eligibility decisions consume the money as well" And, significantly, the Court stated that "[p]rivate trustees do not make treatment judgments" Id, But a trustee managing a medical trust undoubtedly must make administrative decisions that require the exercise of medical judgment Petitioners are not the employers of respondents' treating physicians and are therefore in a somewhat analogous position to that of a trustee for a traditional medical trust[6] *220 ERISA itself and its implementing regulations confirm this interpretation ERISA defines a fiduciary as any person "to the extent he has any discretionary authority or discretionary responsibility in the administration of [an employee benefit] plan" 3(21)(A)(iii), 29 US C 1002(21)(A)(iii) When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries See Varity Corp, Also, ERISA 503, which specifies minimum requirements for a plan's claim procedure, requires plans to "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim" 29 US C 1133(2) This strongly suggests that the ultimate decisionmaker in a plan regarding an award of benefits must be a fiduciary and must be acting as a fiduciary when determining a participant's or beneficiary's claim The relevant regulations also establish extensive requirements to ensure full and fair review of benefit denials See 29 CFR 2560503-1 These regulations, on their face, apply equally to health benefit plans and other plans, and do not draw distinctions between medical and nonmedical benefits determinations Indeed, the regulations strongly imply that benefits determinations involving medical judgments are, just as much as any other benefits determinations, actions by plan fiduciaries See, e g, 2560503-1(h)(3)(iii) Classifying any entity with discretionary authority over benefits determinations as anything but a plan fiduciary would thus conflict with ERISA's statutory and regulatory scheme Since administrators making benefits determinations, even determinations based extensively on medical judgments, are ordinarily acting as plan fiduciaries, it was essential to 's *221 conclusion that the decisions challenged there were truly "mixed eligibility and treatment decisions," 530 US, i e, medical necessity decisions made by the plaintiff's treating physician qua treating physician and qua benefits administrator Put another way, the reasoning of "only make[s] sense where the underlying negligence also plausibly constitutes medical maltreatment by a party who can be deemed to be a treating physician or such a physician's employer" Cicio, 321 F3d, 9 (Calabresi, J, dissenting in part) Here, however, petitioners are neither respondents' treating physicians nor the employers of respondents' treating physicians Petitioners' coverage decisions, then, are pure eligibility decisions, and is not implicated V We hold that respondents' causes of action, brought to remedy only the denial of benefits under ERISA-regulated benefit plans, fall within the scope of, and are completely pre-empted by, ERISA 502(a)(1)(B), and thus removable to federal district court The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion[7] It is so ordered

Justice Ginsburg

concurring

Aetna Health Inc. v. Davila

2004-06-21

https://www.courtlistener.com/opinion/136991/aetna-health-inc-v-davila/

https://www.courtlistener.com/api/rest/v3/clusters/136991/

2003-076

The Court today holds that the claims respondents asserted under Texas law are totally preempted by § 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U.S. C. § 1132(a). That decision is consistent with our governing case law on ERISA's preemptive scope. I therefore join the Court's opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002), I also join "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime." DiFelice v. AETNA U. S. Healthcare, 346 F.3d 442, 453 (CA3 2003) (Becker, J., concurring). Because the Court has coupled an encompassing interpretation of ERISA's preemptive force with a cramped construction of the "equitable relief" allowable under § 502(a)(3), a "regulatory vacuum" exists: "[V]irtually all state law remedies are preempted but very few federal substitutes are provided." Id., at 456, 457 (internal quotation marks omitted). A series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain make-whole relief. First, in Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985), the Court stated, in dicta: "[T]here is a stark absence—in [ERISA] itself and in its legislative history—of any reference to an intention to authorize the recovery of extracontractual damages" for consequential injuries. Id., at 148. Then, in Mertens v. Hewitt Associates, 508 U.S. 248 (1993), the Court held that § 502(a)(3)'s term "`equitable relief' . . . refer[s] to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Id., at 256 (emphasis in original). Most recently, in Great-West, the *223 Court ruled that, as "§ 502(a)(3), by its terms, only allows for equitable relief," the provision excludes "the imposition of personal liability . . . for a contractual obligation to pay money." 534 U.S., at 221 (emphasis in original). As the array of lower court cases and opinions documents, see, e. g., DiFelice; Cicio v. Does, 321 F.3d 83 (CA2 2003), cert. pending sub nom. Vytra Healthcare v. Cicio, No. 03-69 [REPORTER'S NOTE: See post, p. 933], fresh consideration of the availability of consequential damages under § 502(a)(3) is plainly in order. See 321 F.3d, at 106, 107 (Calabresi, J., dissenting in part) ("gaping wound" caused by the breadth of preemption and limited remedies under ERISA, as interpreted by this Court, will not be healed until the Court "start[s] over" or Congress "wipe[s] the slate clean"); DiFelice, 346 F.3d, at 467 ("The vital thing . . . is that either Congress or the Court act quickly, because the current situation is plainly untenable."); Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, 103 Colum. L. Rev. 1317, 1365 (2003) (hereinafter Langbein) ("The Supreme Court needs to . . . realign ERISA remedy law with the trust remedial tradition that Congress intended [when it provided in § 502(a)(3) for] `appropriate equitable relief.'"). The Government notes a potential amelioration. Recognizing that "this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary," the Government suggests that the Act, as currently written and interpreted, may "allo[w] at least some forms of `make-whole' relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench." Brief for United States as Amicus Curiae 27-28, n. 13 (emphases added); cf. ante, at 220 ("entity with discretionary authority over benefits determinations" is a "plan fiduciary"); Tr. of Oral Arg. 13 ("Aetna is [a fiduciary]—and CIGNA is for purposes of claims processing."). As the Court points out, respondents here declined *224 the opportunity to amend their complaints to state claims for relief under § 502(a); the District Court, therefore, properly dismissed their suits with prejudice. See ante, at 221, n. 7. But the Government's suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue. "Congress . . . intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief." Langbein 1319. I anticipate that Congress, or this Court, will one day so confirm.

The Court today holds that the claims respondents asserted under Texas law are totally preempted by 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U.S. C. 1132(a). That decision is consistent with our governing case law on ERISA's preemptive scope. I therefore join the Court's opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. I also join "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime." Because the Court has coupled an encompassing interpretation of ERISA's preemptive force with a cramped construction of the "equitable relief" allowable under 502(a)(3), a "regulatory vacuum" exists: "[V]irtually all state law remedies are preempted but very few federal substitutes are provided." A series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain make-whole relief. First, in Massachusetts Mut. Life Ins. the Court stated, in dicta: "[T]here is a stark absence—in [ERISA] itself and in its legislative history—of any reference to an intention to authorize the recovery of extracontractual damages" for consequential injuries. Then, in the Court held that 502(a)(3)'s term "`equitable relief' refer[s] to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Most recently, in Great-West, the *223 Court ruled that, as " 502(a)(3), by its terms, only allows for equitable relief," the provision excludes "the imposition of personal liability for a contractual obligation to pay money." As the array of lower court cases and opinions documents, see, e. g., ; cert. pending sub nom. Vytra Healthcare v. Cicio, No. 03-69 [REPORTER'S NOTE: See post, p. 933], fresh consideration of the availability of consequential damages under 502(a)(3) is plainly in order. See 107 ("gaping wound" caused by the breadth of preemption and limited remedies under ERISA, as interpreted by this Court, will not be healed until the Court "start[s] over" or Congress "wipe[s] the slate clean"); ; Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, ("The Supreme Court needs to realign ERISA remedy law with the trust remedial tradition that Congress intended [when it provided in 502(a)(3) for] `appropriate equitable relief.'"). The Government notes a potential amelioration. Recognizing that "this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary," the Government suggests that the Act, as currently written and interpreted, may "allo[w] at least some forms of `make-whole' relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench." Brief for United States as Amicus Curiae 27-28, n. 13 (emphases added); cf. ante, at 220 ("entity with discretionary authority over benefits determinations" is a "plan fiduciary"); Tr. of Oral Arg. 13 ("Aetna is [a fiduciary]—and CIGNA is for purposes of claims processing."). As the Court points out, respondents here declined *224 the opportunity to amend their complaints to state claims for relief under 502(a); the District Court, therefore, properly dismissed their suits with prejudice. See ante, at 221, n. 7. But the Government's suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue. "Congress intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief." Langbein 1319. I anticipate that Congress, or this Court, will one day so confirm.

Justice Thomas

majority

Desert Palace, Inc. v. Costa

2003-06-09

https://www.courtlistener.com/opinion/130146/desert-palace-inc-v-costa/

https://www.courtlistener.com/api/rest/v3/clusters/130146/

2002-068

The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required. I A Since 1964, Title VII has made it an "unlawful employment practice for an employer . . . to discriminate against any individual *93 . . ., because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, 42 U.S. C. § 2000e-2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court considered whether an employment decision is made "because of" sex in a "mixed-motive" case, i. e., where both legitimate and illegitimate reasons motivated the decision. The Court concluded that, under § 2000e-2(a)(1), an employer could "avoid a finding of liability . . . by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O'CONNOR, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense. Justice Brennan, writing for a plurality of four Justices, would have held that "when a plaintiff.. . proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Id., at 258 (emphasis added). The plurality did not, however, "suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision." Id., at 251-252. Justice White and JUSTICE O'CONNOR both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff "show[ed] that the unlawful motive was a substantial factor in the adverse employment action." Price Waterhouse, supra, at 259. JUSTICE O'CONNOR, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a "substantial factor" in the employment decision. 490 U.S., at 276. But, under JUSTICE O'CONNOR'S view, "the burden on the issue *94 of causation" would shift to the employer only where "a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision." Ibid. (emphasis added). Two years after Price Waterhouse, Congress passed the 1991 Act "in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964." Landgraf v. USI Film Products, 511 U.S. 244, 250 (1994). In particular, § 107 of the 1991 Act, which is at issue in this case, "respond[ed]" to Price Waterhouse by "setting forth standards applicable in `mixed motive' cases" in two new statutory provisions.[1] 511 U. S., at 251. The first establishes an alternative for proving that an "unlawful employment practice" has occurred: "Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S. C. § 2000e-2(m). The second provides that, with respect to "a claim in which an individual proves a violation under section 2000e-2(m)," the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs. § 2000e-5(g)(2)(B).[2] In order to avail itself of *95 the affirmative defense, the employer must "demonstrat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor." Ibid. Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U.S. C. § 2000e-2(m). Relying primarily on JUSTICE O'CONNOR'S concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under § 2000e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F.3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449, 1453-1454 (CA11 1996); Fuller v. Phipps, 67 F.3d 1137, 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98. B Petitioner Desert Palace, Inc., dba Caesar's Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catharina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit. Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but *96 Gerber, who had a clean disciplinary record, received only a 5-day suspension. Respondent subsequently filed this lawsuit against petitioner in the United States District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At trial, respondent presented evidence that (1) she was singled out for "intense `stalking'" by one of her supervisors, (2) she received harsher discipline than men for the same conduct, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors repeatedly "stack[ed]" her disciplinary record and "frequently used or tolerated" sex-based slurs against her. 299 F.3d 838, 845-846 (CA9 2002). Based on this evidence, the District Court denied petitioner's motion for judgment as a matter of law, and submitted the case to the jury with instructions, two of which are relevant here. First, without objection from petitioner, the District Court instructed the jury that "`[t]he plaintiff has the burden of proving . . . by a preponderance of the evidence'" that she "`suffered adverse work conditions'" and that her sex "`was a motivating factor in any such work conditions imposed upon her.'" Id., at 858. Second, the District Court gave the jury the following mixed-motive instruction: "`You have heard evidence that the defendant's treatment of the plaintiff was motivated by the plaintiff's sex and also by other lawful reasons. If you find that the plaintiff's sex was a motivating factor in the defendant's treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason. "`However, if you find that the defendant's treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled *97 to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment decision.'" Ibid. Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce "direct evidence" that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding backpay, compensatory damages, and punitive damages. The District Court denied petitioner's renewed motion for judgment as a matter of law. The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present "substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus." 268 F.3d 882, 884 (CA9 2001). In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was "terminated because she was a woman." Id., at 890. The Court of Appeals reinstated the District Court's judgment after rehearing the case en banc. 299 F.3d 838 (CA9 2002). The en banc court saw no need to decide whether JUSTICE O'CONNOR'S concurrence in Price Waterhouse controlled because it concluded that JUSTICE O'CONNOR'S references to "direct evidence" had been "wholly abrogated" by the 1991 Act. 299 F.3d, at 850. And, turning "to the language" of § 2000e-2(m), the court observed that the statute "imposes no special [evidentiary] requirement and does not reference `direct evidence.'" Id., at 853. Accordingly, the court concluded that a "plaintiff . . . may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played `a motivating *98 factor.'" Id., at 853-854 (footnote omitted). Based on that standard, the Court of Appeals held that respondent's evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that respondent's sex was a "motivating factor in her treatment." Id., at 859. Four judges of the en banc panel dissented, relying in large part on "the reasoning of the prior opinion of the three-judge panel." Id., at 866. We granted certiorari. 537 U.S. 1099 (2003). II This case provides us with the first opportunity to consider the effects of the 1991 Act on jury instructions in mixed-motive cases. Specifically, we must decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under 42 U.S. C. § 2000e-2(m). Petitioner's argument on this point proceeds in three steps: (1) JUSTICE O'CONNOR'S opinion is the holding of Price Waterhouse; (2) JUSTICE O'CONNOR'S Price Waterhouse opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and (3) the 1991 Act does nothing to abrogate that holding. Like the Court of Appeals, we see no need to address which of the opinions in Price Waterhouse is controlling: the third step of petitioner's argument is flawed, primarily because it is inconsistent with the text of § 2000e-2(m). Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 (1992). And where, as here, the words of the statute are unambiguous, the "`judicial inquiry is complete.'" Id., at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Section 2000e-2(m) unambiguously states that a plaintiff need only "demonstrat[e]" that an employer used a forbidden consideration with respect to "any employment practice." On its face, the statute does not mention, much less require, that a plaintiff *99 make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9. Moreover, Congress explicitly defined the term "demonstrates" in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term "`demonstrates'" as to "mee[t] the burdens of production and persuasion." § 2000e(m). If Congress intended the term "`demonstrates'" to require that the "burdens of production and persuasion" be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in § 2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42. See, e. g., 8 U.S. C. § 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien "demonstrates by clear and convincing evidence" that the application was filed within one year of the alien's arrival in the United States); 42 U.S. C. § 5851(b)(3)(D) (providing that "[r]elief may not be ordered" against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to "demonstrat[e] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" (emphasis added)); cf. Price Waterhouse, 490 U. S., at 253 (plurality opinion) ("Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief"). In addition, Title VII's silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the "[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases." Ibid. That rule requires a plaintiff to prove his case "by a preponderance of the evidence," ibid., using "direct or circumstantial evidence," Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, n. 3 (1983). We have often acknowledged *100 the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), we recognized that evidence that a defendant's explanation for an employment practice is "unworthy of credence" is "one form of circumstantial evidence that is probative of intentional discrimination." Id., at 147 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957). The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States, 348 U.S. 121, 140 (1954) (observing that, in criminal cases, circumstantial evidence is "intrinsically no different from testimonial evidence"). And juries are routinely instructed that "[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence." 1A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ¶ 74.01 (2002) (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute. Tr. of Oral Arg. 13. Finally, the use of the term "demonstrates" in other provisions of Title VII tends to show further that § 2000e-2(m) does not incorporate a direct evidence requirement. See, e. g., 42 U.S. C. §§ 2000e-2(k)(1)(A)(i), 2000e-5(g)(2)(B). For instance, § 2000e-5(g)(2)(B) requires an employer to "demonstrat[e] *101 that [it] would have taken the same action in the absence of the impermissible motivating factor" in order to take advantage of the partial affirmative defense. Due to the similarity in structure between that provision and § 2000e-2(m), it would be logical to assume that the term "demonstrates" would carry the same meaning with respect to both provisions. But when pressed at oral argument about whether direct evidence is required before the partial affirmative defense can be invoked, petitioner did not "agree that . . . the defendant or the employer has any heightened standard" to satisfy. Tr. of Oral Arg. 7. Absent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue. See Commissioner v. Lundy, 516 U.S. 235, 250 (1996) ("The interrelationship and close proximity of these provisions of the statute `presents a classic case for application of the "normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning"'" (quoting Sullivan v. Stroop, 496 U.S. 478, 484 (1990))). For the reasons stated above, we agree with the Court of Appeals that no heightened showing is required under § 2000e-2(m).[3] * * * In order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Because direct evidence of discrimination is not required in mixed-motive *102 cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required. I A Since 1964, Title VII has made it an "unlawful employment practice for an employer to discriminate against any individual *93, because of such individual's race, color, religion, sex, or national origin." 42 U.S. C. 2000e-2(a)(1) In Price the Court considered whether an employment decision is made "because of" sex in a "mixed-motive" case, i. e., where both legitimate and illegitimate reasons motivated the The Court concluded that, under 2000e-2(a)(1), an employer could "avoid a finding of liability by proving that it would have made the same decision even if it had not allowed gender to play such a role." ; see n. (White, J., concurring in judgment); The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense. Justice Brennan, writing for a plurality of four Justices, would have held that "when a plaintiff. proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." The plurality did not, however, "suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment " Justice White and JUSTICE O'CONNOR both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of and would have shifted the burden to the employer only when a plaintiff "show[ed] that the unlawful motive was a substantial factor in the adverse employment action." Price JUSTICE O'CONNOR, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a "substantial factor" in the employment But, under JUSTICE O'CONNOR'S view, "the burden on the issue *94 of causation" would shift to the employer only where "a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the " Two years after Price Congress passed the 1991 Act "in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964." In particular, 107 of the 1991 Act, which is at issue in this case, "respond[ed]" to Price by "setting forth standards applicable in `mixed motive' cases" in two new statutory provisions.[1] The first establishes an alternative for proving that an "unlawful employment practice" has occurred: "Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S. C. 2000e-2(m). The second provides that, with respect to "a claim in which an individual proves a violation under section 2000e-2(m)," the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs. 2000e-5(g)(2)(B).[2] In order to avail itself of *95 the affirmative defense, the employer must "demonstrat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor." Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U.S. C. 2000e-2(m). Relying primarily on JUSTICE O'CONNOR'S concurrence in Price a number of courts have held that direct evidence is required to establish liability under 2000e-2(m). See, e. g., ; ; ; In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98. B Petitioner Desert Palace, Inc., dba Caesar's Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catharina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit. Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but *96 Gerber, who had a clean disciplinary record, received only a 5-day suspension. Respondent subsequently filed this lawsuit against petitioner in the United States District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At trial, respondent presented evidence that (1) she was singled out for "intense `stalking'" by one of her supervisors, (2) she received harsher discipline than men for the same conduct, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors repeatedly "stack[ed]" her disciplinary record and "frequently used or tolerated" sex-based slurs against her. Based on this evidence, the District Court denied petitioner's motion for judgment as a matter of law, and submitted the case to the jury with instructions, two of which are relevant here. First, without objection from petitioner, the District Court instructed the jury that "`[t]he plaintiff has the burden of proving by a preponderance of the evidence'" that she "`suffered adverse work conditions'" and that her sex "`was a motivating factor in any such work conditions imposed upon her.'" Second, the District Court gave the jury the following mixed-motive instruction: "`You have heard evidence that the defendant's treatment of the plaintiff was motivated by the plaintiff's sex and also by other lawful reasons. If you find that the plaintiff's sex was a motivating factor in the defendant's treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason. "`However, if you find that the defendant's treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled *97 to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment '" Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce "direct evidence" that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding backpay, compensatory damages, and punitive damages. The District Court denied petitioner's renewed motion for judgment as a matter of law. The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present "substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus." In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was "terminated because she was a woman." The Court of Appeals reinstated the District Court's judgment after rehearing the case en banc. The en banc court saw no need to decide whether JUSTICE O'CONNOR'S concurrence in Price controlled because it concluded that JUSTICE O'CONNOR'S references to "direct evidence" had been "wholly abrogated" by the 1991 And, turning "to the language" of 2000e-2(m), the court observed that the statute "imposes no special [evidentiary] requirement and does not reference `direct evidence.'" Accordingly, the court concluded that a "plaintiff may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played `a motivating *98 factor.'" -854 Based on that standard, the Court of Appeals held that respondent's evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that respondent's sex was a "motivating factor in her treatment." Four judges of the en banc panel dissented, relying in large part on "the reasoning of the prior opinion of the three-judge panel." We granted certiorari. II This case provides us with the first opportunity to consider the effects of the 1991 Act on jury instructions in mixed-motive cases. Specifically, we must decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under 42 U.S. C. 2000e-2(m). Petitioner's argument on this point proceeds in three steps: (1) JUSTICE O'CONNOR'S opinion is the holding of Price ; (2) JUSTICE O'CONNOR'S Price opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and (3) the 1991 Act does nothing to abrogate that holding. Like the Court of Appeals, we see no need to address which of the opinions in Price is controlling: the third step of petitioner's argument is flawed, primarily because it is inconsistent with the text of 2000e-2(m). Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. And where, as here, the words of the statute are unambiguous, the "`judicial inquiry is complete.'" ). Section 2000e-2(m) unambiguously states that a plaintiff need only "demonstrat[e]" that an employer used a forbidden consideration with respect to "any employment practice." On its face, the statute does not mention, much less require, that a plaintiff *99 make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9. Moreover, Congress explicitly defined the term "demonstrates" in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term "`demonstrates'" as to "mee[t] the burdens of production and persuasion." 2000e(m). If Congress intended the term "`demonstrates'" to require that the "burdens of production and persuasion" be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in 2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42. See, e. g., 8 U.S. C. 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien "demonstrates by clear and convincing evidence" that the application was filed within one year of the alien's arrival in the United States); 42 U.S. C. 5851(b)(3)(D) (providing that "[r]elief may not be ordered" against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to "demonstrat[e] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" ); cf. Price ("Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief"). In addition, Title VII's silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the "[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases." That rule requires a plaintiff to prove his case "by a preponderance of the evidence," ib using "direct or circumstantial evidence," Postal Service Bd. of We have often acknowledged *100 the utility of circumstantial evidence in discrimination cases. For instance, in we recognized that evidence that a defendant's explanation for an employment practice is "unworthy of credence" is "one form of circumstantial evidence that is probative of intentional discrimination." The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See And juries are routinely instructed that "[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence." 1A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal 12.04 ; see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ¶ 74.01 (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute. Tr. of Oral Arg. 13. Finally, the use of the term "demonstrates" in other provisions of Title VII tends to show further that 2000e-2(m) does not incorporate a direct evidence requirement. See, e. g., 42 U.S. C. 2000e-2(k)(1)(A)(i), 2000e-5(g)(2)(B). For instance, 2000e-5(g)(2)(B) requires an employer to "demonstrat[e] *101 that [it] would have taken the same action in the absence of the impermissible motivating factor" in order to take advantage of the partial affirmative defense. Due to the similarity in structure between that provision and 2000e-2(m), it would be logical to assume that the term "demonstrates" would carry the same meaning with respect to both provisions. But when pressed at oral argument about whether direct evidence is required before the partial affirmative defense can be invoked, petitioner did not "agree that the defendant or the employer has any heightened standard" to satisfy. Tr. of Oral Arg. 7. Absent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue. See )). For the reasons stated above, we agree with the Court of Appeals that no heightened showing is required under 2000e-2(m).[3] * * * In order to obtain an instruction under 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Because direct evidence of discrimination is not required in mixed-motive *102 cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Justice O'Connor

concurring

Desert Palace, Inc. v. Costa

2003-06-09

https://www.courtlistener.com/opinion/130146/desert-palace-inc-v-costa/

https://www.courtlistener.com/api/rest/v3/clusters/130146/

2002-068

I join the Court's opinion. In my view, prior to the Civil Rights Act of 1991, the evidentiary rule we developed to shift the burden of persuasion in mixed-motive cases was appropriately applied only where a disparate treatment plaintiff "demonstrated by direct evidence that an illegitimate factor played a substantial role" in an adverse employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 275 (1989) (O'CONNOR, J., concurring in judgment). This showing triggered "the deterrent purpose of the statute" and permitted a reasonable factfinder to conclude that "absent further explanation, the employer's discriminatory motivation `caused' the employment decision." Id., at 265. As the Court's opinion explains, in the Civil Rights Act of 1991, Congress codified a new evidentiary rule for mixed-motive cases arising under Title VII. Ante, at 98-101. I therefore agree with the Court that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.

I join the Court's opinion. In my view, prior to the Civil Rights Act of 1991, the evidentiary rule we developed to shift the burden of persuasion in mixed-motive cases was appropriately applied only where a disparate treatment plaintiff "demonstrated by direct evidence that an illegitimate factor played a substantial role" in an adverse employment decision. Price This showing triggered "the deterrent purpose of the statute" and permitted a reasonable factfinder to conclude that "absent further explanation, the employer's discriminatory motivation `caused' the employment decision." As the Court's opinion explains, in the Civil Rights Act of 1991, Congress codified a new evidentiary rule for mixed-motive cases arising under Title VII. Ante, at 98-101. I therefore agree with the Court that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.

Justice Breyer

majority

Class v. United States

2018-02-21

https://www.courtlistener.com/opinion/4469603/class-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4469603/

2017-005

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal. I In September 2013, a federal grand jury indicted peti- tioner, Rodney Class, for possessing firearms in his locked jeep, which was parked in a lot on the grounds of the United States Capitol in Washington, D. C. See 40 U.S. C. §5104(e)(1) (“An individual . . . may not carry . . . on the Grounds or in any of the Capitol Buildings a fire- arm”). Soon thereafter, Class, appearing pro se, asked the Federal District Court for the District of Columbia to dismiss the indictment. As relevant here, Class alleged that the statute, §5104(e), violates the Second Amend- ment. App. in No. 15–3015 (CADC), pp. 32–33. He also raised a due process claim, arguing that he was denied fair notice that weapons were banned in the parking lot. Id., at 39. Following a hearing, the District Court denied both claims. App. to Pet. for Cert. 9a. Several months later, Class pleaded guilty to “Posses- 2 CLASS v. UNITED STATES Opinion of the Court sion of a Firearm on U. S. Capitol Grounds, in violation of 40 U.S. C. §5104(e).” App. 30. The Government agreed to drop related charges. Id., at 31. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he expressly agreed to waive. Those express waivers included: (1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined, maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investiga- tion and prosecution of his criminal case. Id., at 38–42. At the same time, the plea agreement expressly enumer- ated categories of claims that Class could raise on appeal, including claims based upon (1) newly discovered evi- dence; (2) ineffective assistance of counsel; and (3) certain statutes providing for sentence reductions. Id., at 41. Finally, the plea agreement stated under the heading “Complete Agreement”: “No agreements, promises, understandings, or repre- sentations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements . . . be made unless committed to writing and signed . . . .” Id., at 45. The agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional. The District Court held a plea hearing during which it reviewed the terms of the plea agreement (with Class present and under oath) to ensure the validity of the plea. See Fed. Rule Crim. Proc. 11(b); United States v. Ruiz, 536 U.S. 622, 629 (2002) (defendant’s guilty plea must be “ ‘voluntary’ ” and “related waivers” must be made “ ‘know- ing[ly], intelligent[ly], [and] with sufficient awareness of Cite as: 583 U. S. ____ (2018) 3 Opinion of the Court the relevant circumstances and likely consequences’ ”). After providing Class with the required information and warnings, the District Court accepted his guilty plea. Class was sentenced to 24 days imprisonment followed by 12 months of supervised release. Several days later, Class appealed his conviction to the Court of Appeals for the District of Columbia Circuit. Class was appointed an amicus to aid him in presenting his arguments. He repeated his constitutional claims, namely, that the statute violates the Second Amendment and the Due Process Clause because it fails to give fair notice of which areas fall within the Capitol Grounds where firearms are banned. The Court of Appeals held that Class could not raise his constitutional claims be- cause, by pleading guilty, he had waived them. App. to Pet. for Cert. 1a–5a. Class filed a petition for certiorari in this Court asking us to decide whether in pleading guilty a criminal defendant inherently waives the right to chal- lenge the constitutionality of his statute of conviction. We agreed to do so. II The question is whether a guilty plea by itself bars a federal criminal defendant from challenging the constitu- tionality of the statute of conviction on direct appeal. We hold that it does not. Class did not relinquish his right to appeal the District Court’s constitutional determinations simply by pleading guilty. As we shall explain, this hold- ing flows directly from this Court’s prior decisions. Fifty years ago this Court directly addressed a similar claim (a claim that the statute of conviction was unconsti- tutional). And the Court stated that a defendant’s “plea of guilty did not . . . waive his previous [constitutional] claim.” Haynes v. United States, 390 U.S. 85, 87, n. 2 (1968). Though Justice Harlan’s opinion for the Court in Haynes offered little explanation for this statement, sub- 4 CLASS v. UNITED STATES Opinion of the Court sequent decisions offered a rationale that applies here. In Blackledge v. Perry, 417 U.S. 21 (1974), North Caro- lina indicted and convicted Jimmy Seth Perry on a mis- demeanor assault charge. When Perry exercised his right under a North Carolina statute to a de novo trial in a higher court, the State reindicted him, but this time the State charged a felony, which carried a heavier penalty, for the same conduct. Perry pleaded guilty. He then sought habeas relief on the grounds that the reindictment amounted to an unconstitutional vindictive prosecution. The State argued that Perry’s guilty plea barred him from raising his constitutional challenge. But this Court held that it did not. The Court noted that a guilty plea bars appeal of many claims, including some “ ‘antecedent constitutional viola- tions’ ” related to events (say, grand jury proceedings) that had “ ‘occurred prior to the entry of the guilty plea.’ ” Id., at 30 (quoting Tollett v. Henderson, 411 U.S. 258, 266– 267 (1973)). While Tollett claims were “of constitutional dimension,” the Court explained that “the nature of the underlying constitutional infirmity is markedly different” from a claim of vindictive prosecution, which implicates “the very power of the State” to prosecute the defendant. Blackledge, 417 U.S., at 30. Accordingly, the Court wrote that “the right” Perry “asserts and that we today accept is the right not to be haled into court at all upon the felony charge” since “[t]he very initiation of the proceedings” against Perry “operated to deprive him due process of law.” Id., at 30–31. A year and a half later, in Menna v. New York, 423 U.S. 61 (1975) (per curiam), this Court repeated what it had said and held in Blackledge. After Menna served a 30-day jail term for refusing to testify before the grand jury on November 7, 1968, the State of New York charged him once again for (what Menna argued was) the same crime. Menna pleaded guilty, but subsequently appealed arguing Cite as: 583 U. S. ____ (2018) 5 Opinion of the Court that the new charge violated the Double Jeopardy Clause. U. S. Const., Amdt. 5. The lower courts held that Menna’s constitutional claim had been “waived” by his guilty plea. This Court reversed. Citing Blackledge, supra, at 30, the Court held that “a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.” Menna, 423 U.S., at 63, and n. 2. Menna’s claim amounted to a claim that “the State may not convict” him “no matter how validly his factual guilt is established.” Ibid. Menna’s “guilty plea, therefore, [did] not bar the claim.” Ibid. These holdings reflect an understanding of the nature of guilty pleas which, in broad outline, stretches back nearly 150 years. In 1869 Justice Ames wrote for the Supreme Judicial Court of Massachusetts: “The plea of guilty is, of course, a confession of all the facts charged in the indictment, and also of the evil intent imputed to the defendant. It is a waiver also of all merely technical and formal objections of which the defendant could have availed himself by any other plea or motion. But if the facts alleged and admitted do not constitute a crime against the laws of the Commonwealth, the defendant is entitled to be dis- charged.” Commonwealth v. Hinds, 101 Mass. 209, 210. Decisions of federal and state courts throughout the 19th and 20th centuries reflect a similar view of the na- ture of a guilty plea. See United States v. Ury, 106 F.2d 28 (CA2 1939) (holding the “plea of guilty did not foreclose the appellant,” who argued that a statute was unconstitu- tional, “from the review he now seeks” (citing earlier cases)); Hocking Valley R. Co. v. United States, 210 F. 735 (CA6 1914) (holding that a defendant may raise the claim that, because the indictment did not charge an offense no 6 CLASS v. UNITED STATES Opinion of the Court crime has been committed, for it is “the settled rule that,” despite a guilty plea, a defendant “may urge” such a con- tention “in the reviewing court”); Carper v. State, 27 Ohio St. 572, 575 (1875) (same). We refer to these cases be- cause it was against this background that Justice Harlan in his opinion for the Court made the statement to which we originally referred, namely, that a defendant’s “plea of guilty did not, of course, waive his previous [constitution- al] claim.” Haynes, 390 U.S., at 87, n. 2 (citing Ury, su- pra, at 28). In more recent years, we have reaffirmed the Menna- Blackledge doctrine and refined its scope. In United States v. Broce, 488 U.S. 563 (1989), the defendants pleaded guilty to two separate indictments in a single proceeding which “on their face” described two separate bid-rigging conspiracies. Id., at 576. They later sought to challenge their convictions on double jeopardy grounds, arguing that they had only admitted to one conspiracy. Citing Black- ledge and Menna, this Court repeated that a guilty plea does not bar a claim on appeal “where on the face of the record the court had no power to enter the conviction or impose the sentence.” 488 U.S., at 569. However, be- cause the defendants could not “prove their claim by rely- ing on those indictments and the existing record” and “without contradicting those indictments,” this Court held that their claims were “foreclosed by the admissions in- herent in their guilty pleas.” Id., at 576. Unlike the claims in Broce, Class’ constitutional claims here, as we understand them, do not contradict the terms of the indictment or the written plea agreement. They are consistent with Class’ knowing, voluntary, and intelligent admission that he did what the indictment alleged. Those claims can be “resolved without any need to venture be- yond that record.” Id., at 575. Nor do Class’ claims focus upon case-related constitu- tional defects that “ ‘occurred prior to the entry of the Cite as: 583 U. S. ____ (2018) 7 Opinion of the Court guilty plea.’ ” Blackledge, 417 U.S., at 30. They could not, for example, “have been ‘cured’ through a new indictment by a properly selected grand jury.” Ibid. (citing Tollett, 411 U. S., at 267). Because the defendant has admitted the charges against him, a guilty plea makes the latter kind of constitutional claim “irrelevant to the constitu- tional validity of the conviction.” Haring v. Prosise, 462 U.S. 306, 321 (1983). But the cases to which we have referred make clear that a defendant’s guilty plea does not make irrelevant the kind of constitutional claim Class seeks to make. In sum, the claims at issue here do not fall within any of the categories of claims that Class’ plea agreement forbids him to raise on direct appeal. They challenge the Gov- ernment’s power to criminalize Class’ (admitted) conduct. They thereby call into question the Government’s power to “ ‘constitutionally prosecute’ ” him. Broce, supra, at 575 (quoting Menna, supra, at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. III We are not convinced by the three basic arguments that the Government and the dissent make in reply. First, the Government contends that by entering a guilty plea, Class inherently relinquished his constitu- tional claims. The Government is correct that a guilty plea does implicitly waive some claims, including some constitutional claims. However, as we explained in Part II, supra, Class’ valid guilty plea does not, by itself, bar direct appeal of his constitutional claims in these circumstances. As an initial matter, a valid guilty plea “forgoes not only a fair trial, but also other accompanying constitutional guarantees.” Ruiz, 536 U.S., at 628–629. While those “simultaneously” relinquished rights include the privilege against compulsory self-incrimination, the jury trial right, 8 CLASS v. UNITED STATES Opinion of the Court and the right to confront accusers, McCarthy v. United States, 394 U.S. 459, 466 (1969), they do not include “a waiver of the privileges which exist beyond the confines of the trial.” Mitchell v. United States, 526 U.S. 314, 324 (1999). Here, Class’ statutory right directly to appeal his conviction “cannot in any way be characterized as part of the trial.” Lafler v. Cooper, 566 U.S. 156, 165 (2012). A valid guilty plea also renders irrelevant—and thereby prevents the defendant from appealing—the constitution- ality of case-related government conduct that takes place before the plea is entered. See, e.g., Haring, supra, at 320 (holding a valid guilty plea “results in the defendant’s loss of any meaningful opportunity he might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment”). Neither can the defendant later complain that the indicting grand jury was unconstitutionally selected. Tollett, supra, at 266. But, as we have said, those kinds of claims are not at issue here. Finally, a valid guilty plea relinquishes any claim that would contradict the “admissions necessarily made upon entry of a voluntary plea of guilty.” Broce, supra, at 573– 574. But the constitutional claim at issue here is con- sistent with Class’ admission that he engaged in the con- duct alleged in the indictment. Unlike the defendants in Broce, Class’ challenge does not in any way deny that he engaged in the conduct to which he admitted. Instead, like the defendants in Blackledge and Menna, he seeks to raise a claim which, “ ‘judged on its face’ ” based upon the existing record, would extinguish the government’s power to “ ‘constitutionally prosecute’ ” the defendant if the claim were successful. Broce, supra, at 575 (quoting Menna, 423 U.S., at 62–63, and n. 2). Second, the Government and the dissent point to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, which governs “conditional” guilty pleas. The Rule states: Cite as: 583 U. S. ____ (2018) 9 Opinion of the Court “Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A de- fendant who prevails on appeal may then withdraw the plea.” The Government and the dissent argue that Rule 11(a)(2) means that “a defendant who pleads guilty cannot challenge his conviction on appeal on a forfeitable or waivable ground that he either failed to present to the district court or failed to reserve in writing.” Brief for United States 23; see also post, at 3–4, 17–18 (opinion of ALITO, J.). They support this argument by pointing to the notes of the Advisory Committee that drafted the text of Rule 11(a)(2). See Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U.S. C. App., p. 911 (hereinafter Advisory Committee’s Notes). In par- ticular, the dissent points to the suggestion that an un- conditional guilty plea constitutes a waiver of “nonjuris- dictional defects,” while the Government points to the drafters’ statement that they intended the Rule’s “condi- tional plea procedure . . . to conserve prosecutorial and judicial resources and advance speedy trial objectives,” while ensuring “much needed uniformity in the federal system on this matter.” Ibid.; see United States v. Vonn, 535 U.S. 55, 64, n. 6 (2002) (approving of Advisory Com- mittee’s Notes as relevant evidence of the drafters’ intent). The Government adds that its interpretation of the Rule furthers these basic purposes. And, the argument goes, just as defendants must use Rule 11(a)(2)’s procedures to preserve, for instance, Fourth Amendment unlawful search-and-seizure claims, so must they use it to preserve the constitutional claims at issue here. The problem with this argument is that, by its own 10 CLASS v. UNITED STATES Opinion of the Court terms, the Rule itself does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitu- tional claim following a guilty plea. At the same time, the drafters’ notes acknowledge that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty.” Advisory Committee’s Notes, at 912. The notes then specifically refer to the “Menna- Blackledge doctrine.” Ibid. They add that the Rule “should not be interpreted as either broadening or narrow- ing [that] doctrine or as establishing procedures for its application.” Ibid. And the notes state that Rule 11(a)(2) “has no application” to the “kinds of constitutional objec- tions” that may be raised under that doctrine. Ibid. The applicability of the Menna-Blackledge doctrine is at issue in this case. Cf. Broce, 488 U.S., at 569 (acknowledging Menna and Blackledge as covering claims “where on the face of the record the court had no power to enter the conviction or impose the sentence”). We therefore hold that Rule 11(a)(2) cannot resolve this case. Third, the Government argues that Class “expressly waived” his right to appeal his constitutional claim. Brief for United States 15. The Government concedes that the written plea agreement, which sets forth the “Complete Agreement” between Class and the Government, see App. 45–46, does not contain this waiver. Id., at 48–49. Rather, the Government relies on the fact that during the Rule 11 plea colloquy, the District Court Judge stated that, under the written plea agreement, Class was “giving up [his] right to appeal [his] conviction.” Id., at 76. And Class agreed. We do not see why the District Court Judge’s statement should bar Class’ constitutional claims. It was made to ensure Class understood “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. Rule Crim. Proc. 11(b)(1)(N). It does not expressly refer to a waiver of the appeal right Cite as: 583 U. S. ____ (2018) 11 Opinion of the Court here at issue. And if it is interpreted as expressly includ- ing that appeal right, it was wrong, as the Government acknowledged at oral argument. See Tr. of Oral Arg. 35– 36. Under these circumstances, Class’ acquiescence nei- ther expressly nor implicitly waived his right to appeal his constitutional claims. * * * For these reasons, we hold that Rodney Class may pursue his constitutional claims on direct appeal. The contrary judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 583 U. S. ____ (2018) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 16–424 _________________ RODNEY CLASS, PETITIONER v.

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal. I In September 2013, a federal grand jury indicted peti- tioner, Rodney Class, for possessing firearms in his locked jeep, which was parked in a lot on the grounds of the United States Capitol in Washington, D. C. See 40 U.S. C. (“An individual may not carry on the Grounds or in any of the Capitol Buildings a fire- arm”). Soon thereafter, Class, appearing pro se, asked the Federal District Court for the District of Columbia to dismiss the indictment. As relevant here, Class alleged that the statute, violates the Second Amend- ment. App. in No. 15–3015 (CADC), pp. 32–33. He also raised a due process claim, arguing that he was denied fair notice that weapons were banned in the parking lot. Following a hearing, the District Court denied both claims. App. to Pet. for Cert. 9a. Several months later, Class pleaded guilty to “Posses- 2 CLASS v. UNITED STATES Opinion of the Court sion of a Firearm on U. S. Capitol Grounds, in violation of 40 U.S. C. App. 30. The Government agreed to drop related charges. A written plea agreement set forth the terms of Class’ guilty plea, including several categories of rights that he expressly agreed to waive. Those express waivers included: (1) all defenses based upon the statute of limitations; (2) several specified trial rights; (3) the right to appeal a sentence at or below the judicially determined, maximum sentencing guideline range; (4) most collateral attacks on the conviction and sentence; and (5) various rights to request or receive information concerning the investiga- tion and prosecution of his criminal case. at 38–42. At the same time, the plea agreement expressly enumer- ated categories of claims that Class could raise on appeal, including claims based upon (1) newly discovered evi- dence; (2) ineffective assistance of counsel; and (3) certain statutes providing for sentence reductions. Finally, the plea agreement stated under the heading “Complete Agreement”: “No agreements, promises, understandings, or repre- sentations have been made by the parties or their counsel other than those contained in writing herein, nor will any such agreements be made unless committed to writing and signed” The agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional. The District Court held a plea hearing during which it reviewed the terms of the plea agreement (with Class present and under oath) to ensure the validity of the plea. See Fed. Rule Crim. Proc. 11(b); United States v. 536 U.S. 622, 629 (defendant’s guilty plea must be “ ‘voluntary’ ” and “related waivers” must be made “ ‘know- ing[ly], intelligent[ly], [and] with sufficient awareness of Cite as: 583 U. S. (2018) 3 Opinion of the Court the relevant circumstances and likely consequences’ ”). After providing Class with the required information and warnings, the District Court accepted his guilty plea. Class was sentenced to 24 days imprisonment followed by 12 months of supervised release. Several days later, Class appealed his conviction to the Court of Appeals for the District of Columbia Circuit. Class was appointed an amicus to aid him in presenting his arguments. He repeated his constitutional claims, namely, that the statute violates the Second Amendment and the Due Process Clause because it fails to give fair notice of which areas fall within the Capitol Grounds where firearms are banned. The Court of Appeals held that Class could not raise his constitutional claims be- cause, by pleading guilty, he had waived them. App. to Pet. for Cert. 1a–5a. Class filed a petition for certiorari in this Court asking us to decide whether in pleading guilty a criminal defendant inherently waives the right to chal- lenge the constitutionality of his statute of conviction. We agreed to do so. The question is whether a guilty plea by itself bars a federal criminal defendant from challenging the constitu- tionality of the statute of conviction on direct appeal. We hold that it does not. Class did not relinquish his right to appeal the District Court’s constitutional determinations simply by pleading guilty. As we shall explain, this hold- ing flows directly from this Court’s prior decisions. Fifty years ago this Court directly addressed a similar claim (a claim that the statute of conviction was unconsti- tutional). And the Court stated that a defendant’s “plea of guilty did not waive his previous [constitutional] claim.” (1968). Though Justice Harlan’s opinion for the Court in offered little explanation for this statement, sub- 4 CLASS v. UNITED STATES Opinion of the Court sequent decisions offered a rationale that applies here. In North Caro- lina indicted and convicted Jimmy Seth Perry on a mis- demeanor assault charge. When Perry exercised his right under a North Carolina statute to a de novo trial in a higher court, the State reindicted him, but this time the State charged a felony, which carried a heavier penalty, for the same conduct. Perry pleaded guilty. He then sought habeas relief on the grounds that the reindictment amounted to an unconstitutional vindictive prosecution. The State argued that Perry’s guilty plea barred him from raising his constitutional challenge. But this Court held that it did not. The Court noted that a guilty plea bars appeal of many claims, including some “ ‘antecedent constitutional viola- tions’ ” related to events (say, grand jury proceedings) that had “ ‘occurred prior to the entry of the guilty plea.’ ” (quoting 266– 267 (1973)). While claims were “of constitutional dimension,” the Court explained that “the nature of the underlying constitutional infirmity is markedly different” from a claim of vindictive prosecution, which implicates “the very power of the State” to prosecute the defendant. Accordingly, the Court wrote that “the right” Perry “asserts and that we today accept is the right not to be haled into court at all upon the felony charge” since “[t]he very initiation of the proceedings” against Perry “operated to deprive him due process of law.” –31. A year and a half later, in v. New York, 423 U.S. 61 (1975) (per curiam), this Court repeated what it had said and held in After served a 30-day jail term for refusing to testify before the grand jury on November 7, 1968, the State of New York charged him once again for (what argued was) the same crime. pleaded guilty, but subsequently appealed arguing Cite as: 583 U. S. (2018) 5 Opinion of the Court that the new charge violated the Double Jeopardy Clause. U. S. Const., Amdt. 5. The lower courts held that ’s constitutional claim had been “waived” by his guilty plea. This Court reversed. Citing the Court held that “a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.” and n. 2. ’s claim amounted to a claim that “the State may not convict” him “no matter how validly his factual guilt is established.” ’s “guilty plea, therefore, [did] not bar the claim.” These holdings reflect an understanding of the nature of guilty pleas which, in broad outline, stretches back nearly 150 years. In 1869 Justice Ames wrote for the Supreme Judicial Court of Massachusetts: “The plea of guilty is, of course, a confession of all the facts charged in the indictment, and also of the evil intent imputed to the defendant. It is a waiver also of all merely technical and formal objections of which the defendant could have availed himself by any other plea or motion. But if the facts alleged and admitted do not constitute a crime against the laws of the Commonwealth, the defendant is entitled to be dis- charged.” 210. Decisions of federal and state courts throughout the 19th and 20th centuries reflect a similar view of the na- ture of a guilty plea. See United States v. Ury, 106 F.2d 28 (CA2 1939) (holding the “plea of guilty did not foreclose the appellant,” who argued that a statute was unconstitu- tional, “from the review he now seeks” (citing earlier cases)); Hocking Valley R. (CA6 1914) (holding that a defendant may raise the claim that, because the indictment did not charge an offense no 6 CLASS v. UNITED STATES Opinion of the Court crime has been committed, for it is “the settled rule that,” despite a guilty plea, a defendant “may urge” such a con- tention “in the reviewing court”); Carper v. State, 27 Ohio St. 572, 575 (1875) (same). We refer to these cases be- cause it was against this background that Justice Harlan in his opinion for the Court made the statement to which we originally referred, namely, that a defendant’s “plea of guilty did not, of course, waive his previous [constitution- al] claim.” 390 U.S., at (citing Ury, su- pra, at 28). In more recent years, we have reaffirmed the - doctrine and refined its scope. In United States v. the defendants pleaded guilty to two separate indictments in a single proceeding which “on their face” described two separate bid-rigging conspiracies. They later sought to challenge their convictions on double jeopardy grounds, arguing that they had only admitted to one conspiracy. Citing Black- ledge and this Court repeated that a guilty plea does not bar a claim on appeal “where on the face of the record the court had no power to enter the conviction or impose the sentence.” However, be- cause the defendants could not “prove their claim by rely- ing on those indictments and the existing record” and “without contradicting those indictments,” this Court held that their claims were “foreclosed by the admissions in- herent in their guilty pleas.” Unlike the claims in Class’ constitutional claims here, as we understand them, do not contradict the terms of the indictment or the written plea agreement. They are consistent with Class’ knowing, voluntary, and intelligent admission that he did what the indictment alleged. Those claims can be “resolved without any need to venture be- yond that record.” Nor do Class’ claims focus upon case-related constitu- tional defects that “ ‘occurred prior to the entry of the Cite as: 583 U. S. (2018) 7 Opinion of the Court guilty plea.’ ” They could not, for example, “have been ‘cured’ through a new indictment by a properly selected grand jury.” (citing ). Because the defendant has admitted the charges against him, a guilty plea makes the latter kind of constitutional claim “irrelevant to the constitu- tional validity of the conviction.” v. Prosise, 462 U.S. 306, 321 (1983). But the cases to which we have referred make clear that a defendant’s guilty plea does not make irrelevant the kind of constitutional claim Class seeks to make. In sum, the claims at issue here do not fall within any of the categories of claims that Class’ plea agreement forbids him to raise on direct appeal. They challenge the Gov- ernment’s power to criminalize Class’ (admitted) conduct. They thereby call into question the Government’s power to “ ‘constitutionally prosecute’ ” him. (quoting at 61–62, n. 2). A guilty plea does not bar a direct appeal in these circumstances. I We are not convinced by the three basic arguments that the Government and the dissent make in reply. First, the Government contends that by entering a guilty plea, Class inherently relinquished his constitu- tional claims. The Government is correct that a guilty plea does implicitly waive some claims, including some constitutional claims. However, as we explained in Part Class’ valid guilty plea does not, by itself, bar direct appeal of his constitutional claims in these circumstances. As an initial matter, a valid guilty plea “forgoes not only a fair trial, but also other accompanying constitutional guarantees.” –629. While those “simultaneously” relinquished rights include the privilege against compulsory self-incrimination, the jury trial right, 8 CLASS v. UNITED STATES Opinion of the Court and the right to confront accusers, they do not include “a waiver of the privileges which exist beyond the confines of the trial.” (1999). Here, Class’ statutory right directly to appeal his conviction “cannot in any way be characterized as part of the trial.” A valid guilty plea also renders irrelevant—and thereby prevents the defendant from appealing—the constitution- ality of case-related government conduct that takes place before the plea is entered. See, e.g., (holding a valid guilty plea “results in the defendant’s loss of any meaningful opportunity he might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment”). Neither can the defendant later complain that the indicting grand jury was unconstitutionally selected. But, as we have said, those kinds of claims are not at issue here. Finally, a valid guilty plea relinquishes any claim that would contradict the “admissions necessarily made upon entry of a voluntary plea of guilty.” at 573– 574. But the constitutional claim at issue here is con- sistent with Class’ admission that he engaged in the con- duct alleged in the indictment. Unlike the defendants in Class’ challenge does not in any way deny that he engaged in the conduct to which he admitted. Instead, like the defendants in and he seeks to raise a claim which, “ ‘judged on its face’ ” based upon the existing record, would extinguish the government’s power to “ ‘constitutionally prosecute’ ” the defendant if the claim were successful. (quoting 423 U.S., at 62–63, and n. 2). Second, the Government and the dissent point to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, which governs “conditional” guilty pleas. The Rule states: Cite as: 583 U. S. (2018) 9 Opinion of the Court “Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A de- fendant who prevails on appeal may then withdraw the plea.” The Government and the dissent argue that Rule 11(a)(2) means that “a defendant who pleads guilty cannot challenge his conviction on appeal on a forfeitable or waivable ground that he either failed to present to the district court or failed to reserve in writing.” Brief for United States 23; see also post, at 3–4, 17–18 (opinion of ALITO, J.). They support this argument by pointing to the notes of the Advisory Committee that drafted the text of Rule 11(a)(2). See Advisory Committee’s Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U.S. C. App., p. 911 (hereinafter Advisory Committee’s Notes). In par- ticular, the dissent points to the suggestion that an un- conditional guilty plea constitutes a waiver of “nonjuris- dictional defects,” while the Government points to the drafters’ statement that they intended the Rule’s “condi- tional plea procedure to conserve prosecutorial and judicial resources and advance speedy trial objectives,” while ensuring “much needed uniformity in the federal system on this matter.” ; see United (approving of Advisory Com- mittee’s Notes as relevant evidence of the drafters’ intent). The Government adds that its interpretation of the Rule furthers these basic purposes. And, the argument goes, just as defendants must use Rule 11(a)(2)’s procedures to preserve, for instance, Fourth Amendment unlawful search-and-seizure claims, so must they use it to preserve the constitutional claims at issue here. The problem with this argument is that, by its own 10 CLASS v. UNITED STATES Opinion of the Court terms, the Rule itself does not say whether it sets forth the exclusive procedure for a defendant to preserve a constitu- tional claim following a guilty plea. At the same time, the drafters’ notes acknowledge that the “Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty.” Advisory Committee’s Notes, at 912. The notes then specifically refer to the “- doctrine.” They add that the Rule “should not be interpreted as either broadening or narrow- ing [that] doctrine or as establishing procedures for its application.” And the notes state that Rule 11(a)(2) “has no application” to the “kinds of constitutional objec- tions” that may be raised under that doctrine. The applicability of the - doctrine is at issue in this case. Cf. (acknowledging and as covering claims “where on the face of the record the court had no power to enter the conviction or impose the sentence”). We therefore hold that Rule 11(a)(2) cannot resolve this case. Third, the Government argues that Class “expressly waived” his right to appeal his constitutional claim. Brief for United States 15. The Government concedes that the written plea agreement, which sets forth the “Complete Agreement” between Class and the Government, see App. 45–46, does not contain this waiver. at 48–49. Rather, the Government relies on the fact that during the Rule 11 plea colloquy, the District Court Judge stated that, under the written plea agreement, Class was “giving up [his] right to appeal [his] conviction.” And Class agreed. We do not see why the District Court Judge’s statement should bar Class’ constitutional claims. It was made to ensure Class understood “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. Rule Crim. Proc. 11(b)(1)(N). It does not expressly refer to a waiver of the appeal right Cite as: 583 U. S. (2018) 11 Opinion of the Court here at issue. And if it is interpreted as expressly includ- ing that appeal right, it was wrong, as the Government acknowledged at oral argument. See Tr. of Oral Arg. 35– 36. Under these circumstances, Class’ acquiescence nei- ther expressly nor implicitly waived his right to appeal his constitutional claims. * * * For these reasons, we hold that Rodney Class may pursue his constitutional claims on direct appeal. The contrary judgment of the Court of Appeals for the District of Columbia Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 583 U. S. (2018) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–424 RODNEY CLASS, PETITIONER v.

Justice Alito

dissenting

Class v. United States

2018-02-21

https://www.courtlistener.com/opinion/4469603/class-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4469603/

2017-005

Roughly 95% of felony cases in the federal and state courts are resolved by guilty pleas.1 Therefore it is criti- cally important that defendants, prosecutors, and judges understand the consequences of these pleas. In this case, the parties have asked us to identify the claims that a defendant can raise on appeal after entering an uncondi- tional guilty plea. Regrettably, the Court provides no clear answer. By my count, the Court identifies no fewer than five rules for ascertaining the issues that can be raised. Ac- cording to the Court, a defendant who pleads guilty may assert on appeal (1) a claim that “implicates ‘the very power of the State’ to prosecute [him],” ante, at 4, (2) a claim that does not contradict the facts alleged in the charging document, ante, at 5–6, (3) a claim that “ ‘the facts alleged and admitted do not constitute a crime,’ ” ante, at 5, and (4) claims other than “case-related constitu- tional defects that ‘occurred prior to the entry of the guilty plea,’ ” ante, at 6–7 (some internal quotation marks omit- —————— 1 See United States Sentencing Commission, Overview of Federal Criminal Cases Fiscal Year 2016, p. 4 (May 2017); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006–Statistical Tables, p. 1 (rev. Nov. 22, 2010). 2 CLASS v. UNITED STATES ALITO, J., dissenting ted). In addition, the Court suggests (5) that such a de- fendant may not be able to assert a claim that “contra- dict[s] the terms of . . . [a] written plea agreement,” ante, at 6, but whether this rule applies when the claim falls into one of the prior four categories is left unclear. How these rules fit together is anybody’s guess. And to make matters worse, the Court also fails to make clear whether its holding is based on the Constitution or some other ground. I There is no justification for the muddle left by today’s decision. The question at issue is not conceptually com- plex. In determining whether a plea of guilty prevents a defendant in federal or state court from raising a particu- lar issue on appeal, the first question is whether the Fed- eral Constitution precludes waiver. If the Federal Consti- tution permits waiver, the next question is whether some other law nevertheless bars waiver. And if no law pre- vents waiver, the final question is whether the defendant knowingly and intelligently waived the right to raise the claim on appeal. McMann v. Richardson, 397 U.S. 759, 766 (1970). Petitioner Rodney Class was charged with violating a federal statute that forbids the carrying of firearms on the grounds of the United States Capitol. See 40 U.S. C. §5104(e)(1). After entering an unconditional guilty plea, he appealed his conviction, asserting that his conduct was protected by the Second Amendment and that the statute he violated is unconstitutionally vague. The Court of Appeals affirmed his conviction, holding that Class had relinquished his right to litigate these claims when he entered his unconditional plea. Analyzing this case under the framework set out above, I think the Court of Appeals was clearly correct. First, the Federal Constitution does not prohibit the waiver of the Cite as: 583 U. S. ____ (2018) 3 ALITO, J., dissenting rights Class asserts. We have held that most personal constitutional rights may be waived, see, e.g., Peretz v. United States, 501 U.S. 923, 936–937 (1991), and Class concedes that this is so with respect to the rights he is asserting, Tr. of Oral Arg. 5, 18. Second, no federal statute or rule bars waiver. On the contrary, Rule 11 of the Federal Rules of Criminal Proce- dure makes it clear that, with one exception that I will discuss below, a defendant who enters an unconditional plea waives all nonjurisdictional claims. Although the Rule does not say this expressly, that is the unmistakable implication of subdivision (a)(2), which allows a defendant, “[w]ith the consent of the court and the government,” to “enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.” “Where [a law] explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a con- trary . . . intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–617 (1980). And here, there is strong evidence confirming that other exceptions were ruled out. The Advisory Committee’s Notes on Rule 11 make this clear, stating that an unconditional plea (with the previ- ously mentioned exception) “constitutes a waiver of all nonjurisdictional defects.” Notes on 1983 Amendments, 18 U.S. C. App., p. 911. Advisory Committee’s Notes on a federal rule of procedure “provide a reliable source of insight into the meaning of a rule, especially when, as here, the rule was enacted precisely as the Advisory Committee proposed.” United States v. Vonn, 535 U.S. 55, 64, n. 6 (2002).2 Subdivision (a)(2) was adopted —————— 2 Advisory Committee’s Notes should not be equated with congres- sional committee reports and other items of legislative history. Advisory Committee’s Notes are adopted by the committee that drafts the rule; 4 CLASS v. UNITED STATES ALITO, J., dissenting against the backdrop of decisions of this Court holding that a guilty plea generally relinquishes all defenses to conviction, see, e.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973), and Rule 11(a)(2) creates a limited exception to that general principle. Far from prohibiting the waiver of nonjurisdictional claims, Rule 11 actually bars the raising of such claims (once again, with the previously mentioned exception). For now, I will skip over that exception and proceed to the final question—whether Class voluntarily and intelli- gently waived his right to raise his Second Amendment and due process claims on appeal. It is not clear that he raised this question in the Court of Appeals, and in any event, this fact-specific inquiry is not within the scope of the question of law on which we granted review: “Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.” Pet. for Cert. i. The Court does not decide the case on that ground. Nor would I. II A I now turn to the one exception mentioned in the Advi- sory Committee’s Notes on Rule 11—what the Notes, rather grandly, term the “Menna-Blackledge doctrine.” Advisory Committee’s Notes, 18 U.S. C. App., at 912. This “doctrine” consists of Blackledge v. Perry, 417 U.S. 21 (1974), a thinly reasoned decision handed down 44 years ago, and Menna v. New York, 423 U.S. 61 (1975) (per curiam), a per curiam decision issued the next year. These cases hold that a defendant has the right under the —————— they are considered by the Judicial Conference when it recommends promulgation of the rule; they are before this Court when we prescribe the rule under the Rules Enabling Act, 28 U.S. C. §2072; and they are submitted to Congress together with the text of the rule under 28 U.S. C. §2074. Cite as: 583 U. S. ____ (2018) 5 ALITO, J., dissenting Due Process Clause of the Fourteenth Amendment to contest certain issues on appeal even if the defendant entered an unconditional guilty plea. Since a rule of procedure cannot abrogate a constitutional right, the Advisory Committee’s Notes on Rule 11 specify that Rule 11(a)(2) “has no application” to the “Menna-Blackledge doctrine” and “should not be interpreted as either broad- ening or narrowing [that] doctrine or as establishing procedures for its application.” Advisory Committee’s Notes, 18 U.S. C. App., at 912. Because this doctrine is the only exception recognized in Rule 11 and because the doctrine figures prominently in the opinion of the Court, it is important to examine its foundation and meaning. B Blackledge and Menna represented marked departures from our prior decisions. Before they were handed down, our precedents were clear: When a defendant pleaded guilty to a crime, he relinquished his right to litigate all nonjurisdictional challenges to his conviction (except for the claim that his plea was not voluntary and intelligent), and the prosecution could assert this forfeiture to defeat a subsequent appeal. The theory was easy to understand. As we explained in Tollett, our view was that “a guilty plea represents a break in the chain of events which has pre- ceded it in the criminal process.” 411 U.S., at 267. The defendant’s decision to plead guilty extinguished his right to litigate whatever “possible defenses” or “constitutional plea[s] in abatement” he might have pursued at trial or on appeal. Id., at 267–268. Guilty pleas were understood to have this effect because a guilty plea comprises both fac- tual and legal concessions. Hence, we said in Tollett, a defendant who pleads guilty is barred from contesting not only the “historical facts” but also the “constitutional significance” of those facts, even if he failed to “correctly 6 CLASS v. UNITED STATES ALITO, J., dissenting apprais[e]” that significance at the time of his plea. Id., at 267 (emphasis added). When Tollett declared that a guilty plea encompasses all legal and factual concessions necessary to authorize the conviction, it was simply reiterating a principle we had enunciated many times before, most recently in the so- called “Brady trilogy.” See Brady v. United States, 397 U.S. 742, 748 (1970) (“[T]he plea is more than an admis- sion of past conduct; it is the defendant’s consent that judgment of conviction may be entered”); McMann, 397 U.S., at 774 (a defendant who pleads guilty “assumes the risk of ordinary error in either his or his attorney’s as- sessment of the law and facts”); Parker v. North Carolina, 397 U.S. 790, 797 (1970) (similar). As we put it in Boykin v. Alabama, 395 U.S. 238, 242 (1969), “[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” On the strength of that rule, we held that defendants who pleaded guilty forfeited a variety of important consti- tutional claims. For instance, a defendant who pleaded guilty could not attack his conviction on the ground that the prosecution violated the Equal Protection Clause by systematically excluding African-Americans from grand juries in the county where he was indicted. Tollett, supra, at 266. Nor could he argue that the prosecution unlawfully coerced his confession—even if the confession was the only evidence supporting the conviction. McMann, supra, at 768; Parker, supra, at 796–797. Nor could he assert that his statute of conviction employed an unconstitutional penalty provision; his consent to be punished under the statute precluded this defense. Brady, supra, at 756–757. Reflecting our general thinking, then-Judge Burger ex- plained: “[I]f voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses Cite as: 583 U. S. ____ (2018) 7 ALITO, J., dissenting known and unknown. And such is the law.” Edwards v. United States, 256 F.2d 707, 709 (CADC 1958) (footnote omitted); see also A. Bishop, Waivers in Pleas of Guilty, 60 F. R. D. 513, 525–526 (1974) (summarizing the state of the law on the eve of Blackledge: “All the bulwarks of the fortress of defense are abandoned by the plea of guilty. . . . The plea of guilty surrenders all defenses whatever and all nonjurisdictional defects” (collecting cases)). III Blackledge and Menna diverged from these prior prece- dents, but neither case provided a clear or coherent expla- nation for the departure. A In Blackledge, the Court held that a defendant who pleaded guilty could nevertheless challenge his conviction on the ground that his right to due process was violated by a vindictive prosecution. 417 U.S., at 30–31. The Court asserted that this right was “markedly different” from the equal protection and Fifth Amendment rights at stake in Tollett and the Brady trilogy because it “went to the very power of the State to bring the defendant into court to answer the charge brought against him.” 417 U.S., at 30. The meaning of this distinction, however, is hard to grasp. The most natural way to understand Blackledge’s refer- ence to “the very power of the State” would be to say that an argument survives a guilty plea if it attacks the court’s jurisdiction. After all, that is usually what we mean when we refer to the power to adjudicate. See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); United States v. Cotton, 535 U.S. 625, 630 (2002); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998). But that cannot be what Blackledge meant. First, the defendant in Blackledge had been tried in state court in North Carolina for a state-law offense, and 8 CLASS v. UNITED STATES ALITO, J., dissenting the jurisdiction of state courts to entertain such prosecu- tions is purely a matter of state law (unless Congress validly and affirmatively ousts their jurisdiction— something that had not happened in that case).3 Second, a rule that jurisdictional defects alone survive a guilty plea would not explain the result in Blackledge itself. Argu- ments attacking a court’s subject-matter jurisdiction can neither be waived nor forfeited. See, e.g., Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389 (1998); Miller v. Roberts, 212 N. C. 126, 129, 193 S.E. 286, 288 (1937). But the due process right at issue in Blackledge was per- fectly capable of being waived or forfeited—as is just about every other right that is personal to a criminal defendant. See, e.g., Peretz, 501 U.S., at 936–937. So if the “very power to prosecute” theory does not refer to jurisdiction, what else might it mean? The only other possibility that comes to mind is that it might mean that a defendant can litigate a claim if it asserts a right not to be tried, as opposed to a right not to be convicted. But we have said that “virtually all rights of criminal defendants” are “merely . . . right[s] not to be convicted,” as distin- guished from “right[s] not to be tried.” Flanagan v. United States, 465 U.S. 259, 267 (1984). Even when a constitu- tional violation requires the dismissal of an indictment, that “does not mean that [the] defendant enjoy[ed] a ‘right not to be tried’ ” on the charges. United States v. Mac- Donald, 435 U.S. 850, 860, n. 7 (1978). The rule could hardly be otherwise. Most constitutional defenses (and plenty of statutory defenses), if successfully asserted in a pretrial motion, deprive the prosecution of the “power” to proceed to trial or secure a conviction. If that remedial consequence converted them all into rights —————— 3 Even for cases prosecuted in federal court, an alleged vindictive prosecution does not present a jurisdictional defect. See 18 U.S. C. §3231. Cite as: 583 U. S. ____ (2018) 9 ALITO, J., dissenting not to be prosecuted, Blackledge would have no discernible limit. “We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ ” Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994). Indeed, “all liti- gants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial.” Van Cauwenberghe v. Biard, 486 U.S. 517, 524 (1988). It is true that we have spoken of a distinction between a right not to be tried and a right not to be convicted in one context: when defining the scope of the collateral order doctrine. E.g., Flanagan, supra, at 265–267. That is, we have allowed defendants in federal criminal cases to take an immediate appeal from the denial of a pretrial motion when the right at issue is properly understood to be a right not to be tried. A prime example is a case in which a defendant claims that a prosecution would violate the Double Jeopardy Clause. See Abney v. United States, 431 U.S. 651, 662 (1977). Allowing an interlocutory appeal in that situation protects against all the harms that flow from the prolongation of a case that should never have been brought. See id., at 661. But that rationale cannot justify the Menna-Blackledge doctrine, because allowing a defendant to appeal after a guilty plea does not cut short a prosecution that should never have been brought. On the contrary, it prolongs the litigation. So the distinction drawn in our collateral order cases makes no sense in distinguishing between the claims that should and the claims that should not survive a guilty plea. Nor, in any event, would such a rule be consistent with the decision in Blackledge, because we have held that an unsuccessful vindictive prosecution claim may not be appealed before trial. United States v. Hollywood Motor Car Co., 458 U.S. 263, 264 (1982) ( per curiam). And none of this would do any good for Class, for we have never 10 CLASS v. UNITED STATES ALITO, J., dissenting permitted a defendant to appeal a pretrial order rejecting a constitutional challenge to the statute the defendant allegedly violated. In fact we have repudiated the very suggestion. Id., at 270. The upshot is that the supposed “right not to be prose- cuted” has no intelligible meaning in this context. And Blackledge identified no basis for this new right in the text of the Constitution or history or prior precedent. What is more, it did all this without bothering to consider the understanding of a guilty plea under the law of the State where the Blackledge defendant was convicted or anything that was said to him or that he said at the time of his plea. B If the thinking behind Blackledge is hard to follow, Menna may be worse. In that case, the Court held that a defendant who pleaded guilty could challenge his convic- tion on double jeopardy grounds. 423 U.S., at 62. The case was decided by a three-page per curiam opinion, its entire analysis confined to a single footnote. And the footnote, rather than elucidating what was said in Black- ledge, substituted a different rationale. Arguing that Tollett and the other prior related cases did not preclude appellate review of the double jeopardy claim, the Court wrote: “[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt.” Menna, 423 U.S., at 62–63, n. 2. The wording of the final sentence is not easy to parse, Cite as: 583 U. S. ____ (2018) 11 ALITO, J., dissenting but I interpret the Court’s reasoning as follows: A defend- ant who pleads guilty does no more than admit that he committed the essential conduct charged in the indict- ment; therefore a guilty plea allows the litigation on ap- peal of any claim that is not inconsistent with the facts that the defendant necessarily admitted. If that is the correct meaning, the sentence would overrule many of the cases that it purported to distinguish, including Tollett, which involved an unconstitutional grand jury claim. It would contradict much that the Court had previously said about the effect of a guilty plea. See, e.g., Boykin, 395 U.S., at 242 (“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction”). And it would permit a defendant who pleads guilty to raise on appeal a whole host of claims, including, for example, the denial of motions to suppress evidence allegedly obtained in violation of the Fourth, Fifth, or Sixth Amendments. See, e.g., Linkletter v. Walker, 381 U.S. 618, 638 (1965) (most Fourth Amendment claims have “no bearing on guilt”). A holding of that scope is not what one expects to see in a footnote in a per curiam opin- ion, but if the Court meant less, its meaning is unclear. C When the Court returned to Blackledge and Menna in United States v. Broce, 488 U.S. 563 (1989), the Court essentially repudiated the theories offered in those earlier cases. (The Court terms this a “reaffirm[ation].” Ante, at 6.) Like Menna, Broce involved a defendant (actually two defendants) who pleaded guilty but then sought to attack their convictions on double jeopardy grounds. 488 U.S., at 565. This time, however, the Court held that their guilty pleas prevented them from litigating their claims. Ibid. The Court began by specifically disavowing Menna’s suggestion that a guilty plea admits only “ ‘factual guilt,’ ” meaning “the acts described in the indictments.” Broce, 12 CLASS v. UNITED STATES ALITO, J., dissenting 488 U.S., at 568–569. Instead, the Court explained, an unconditional guilty plea admits “all of the factual and legal elements necessary to sustain a binding, final judg- ment of guilt and a lawful sentence.” Id., at 569 (emphasis added). “By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” Id., at 570. Such “admissions,” Broce continued, are “necessarily made upon entry of a voluntary plea of guilty.” Id., at 573–574. And invoking Tollett, the Court added that it makes no difference whether the defendant “ ‘may not have correctly appraised the constitutional significance of certain historical facts.’ ” 488 U.S., at 572 (quoting 411 U.S., at 267). Thus, the Court concluded, a defendant’s decision to plead guilty necessarily extin- guishes whatever “potential defense[s]” he might have asserted in an effort to show that it would be unlawful to hold him liable for his conduct. 488 U.S., at 573. So much for Menna. As for Blackledge, by holding that the defendants’ dou- ble jeopardy rights were extinguished by their pleas, Broce necessarily rejected the idea that a right not to be tried survives an unconditional guilty plea. See Abney, 431 U.S., at 662 (holding for collateral-order-doctrine purposes that the Double Jeopardy Clause confers a right not to be tried). While Broce thus rejected the reasoning in Blackledge and Menna, the Court was content to distinguish those cases on the ground that they involved defendants who could succeed on appeal without going beyond “the exist- ing record,” whereas the defendants in Broce would have to present new evidence. Broce, supra, at 575.4 —————— 4 The majority asserts that, unlike the defendants in Broce, Class can make out his constitutional arguments without needing to undertake any factual development. Ante, at 6. It is difficult to see how that can Cite as: 583 U. S. ____ (2018) 13 ALITO, J., dissenting IV A This is where the Menna-Blackledge doctrine stood when we heard this case. Now, instead of clarifying the law, the Court sows new confusion by reiterating with seeming approval a string of catchphrases. The Court repeats the line that an argument survives if it “implicates ‘the very power of the State’ to prosecute the defendant,” ante, at 4 (quoting Blackledge, 417 U.S., at 30), but this shibboleth is no more intelligible now than it was when first incanted in Blackledge. The Court also parrots the rule set out in the Menna footnote—that the only argu- ments waived by a guilty plea are those that contradict the facts alleged in the charging document, see ante, at 5– 6, even though that rule is inconsistent with Tollett, the Brady trilogy, and Broce—and even though this reading —————— be true. Class’s Second Amendment argument is that banning firearms in the Maryland Avenue parking lot of the Capitol Building goes too far, at least as applied to him specifically. As his court-appointed amicus presented it to the Court of Appeals, this argument depends on Class’s own personal characteristics, including his record of mental health and law abidingness, as well as characteristics specific to the Maryland Avenue parking lot, including, inter alia, its distance from the Capitol Building, the extent to which it is unsecured, the extent to which it is publicly accessible, what business typically occurs there, who regularly congregates there, and the nature of security screening visitors must pass through upon entering. See Opening Brief of Court- Appointed Amicus Curiae in Support of Appellant in No. 15–3015 (CADC), pp. 34–35, 41–45. Similarly, Class’s due process argument requires an assessment of how difficult it would be for an average person to determine that the Maryland Avenue lot is part of the Capitol Grounds, which turns on the extent to which the lot is publicly acces- sible, how heavily trafficked it is and by what types of vehicles, whether there are signs indicating it is part of the Capitol Grounds or that guns are prohibited and where such signs are located, and whether there are security gates or checkpoints nearby. See id., at 51, 53. These argu- ments require facts. I understand the majority opinion to preclude Class from gathering any of them that are not already in the District Court record. 14 CLASS v. UNITED STATES ALITO, J., dissenting would permit a defendant who pleads guilty to raise an uncertain assortment of claims never before thought to survive a guilty plea. For example, would this rule permit a defendant to argue that his prosecution is barred by a statute of limita- tions or by the Speedy Trial Act? Presumably the answer is yes. By admitting commission of the acts alleged in an indictment or complaint, a defendant would not concede that the charge was timely. What about the argument that a defendant’s alleged conduct does not violate the statute of conviction? Here again, the rule barring only those claims inconsistent with the facts alleged in the indictment or complaint would appear to permit the issue to be raised on appeal, but the Court says that a defendant who pleads guilty “has admitted the charges against him.” Ante, at 7. What does this mean, exactly? The majority is coy, but “admit[ing] the charges against him” would ap- pear to mean admitting that his conduct satisfies each element of the statute he is charged with violating. It must mean that because we have held that if a defendant does not understand that he is admitting his conduct satisfies each element of the crime, his guilty plea is in- voluntary and unintelligent and therefore invalid. Hen- derson v. Morgan, 426 U.S. 637, 644–645 (1976). So if a defendant who pleads guilty “admit[s] the charges against him,” and if he does not claim that his plea was involun- tary or unintelligent, his plea must be taken as an admis- sion that he did everything the statute forbids. But if that is so, then what about the rule suggested by the old Massachusetts opinion the Court touts? There, Justice Ames wrote that a guilty plea does not waive the right to argue that “ ‘the facts alleged and admitted do not constitute a crime against the laws of the Common- wealth.’ ” Ante, at 5 (quoting Commonwealth v. Hinds, 101 Mass. 209, 210 (1869)). Does the Court agree with Justice Ames, or not? Cite as: 583 U. S. ____ (2018) 15 ALITO, J., dissenting Approaching the question from the opposite direction, the Court says that a guilty plea precludes a defendant from litigating “the constitutionality of case-related gov- ernment conduct that takes place before the plea is en- tered.” Ante, at 8. This category is most mysterious. I thought Class was arguing that the Government violated the Constitution at the moment when it initiated his prosecution. That sounds like he is trying to attack “the constitutionality of case-related government conduct that [took] place before the plea [was] entered.” Yet the Court holds that he may proceed. Why? Finally, the majority instructs that “a valid guilty plea relinquishes any claim that would contradict the ‘admis- sions necessarily made upon entry of a voluntary plea of guilty.’ ” Ibid. (quoting Broce, 488 U. S., at 573–574). I agree with that statement of the rule, but what the Court fails to acknowledge is that the scope of this rule depends on the law of the particular jurisdiction in question. If a defendant in federal court is told that under Rule 11 an unconditional guilty plea waives all nonjurisdictional claims (or as Broce put it, admits “all of the factual and legal elements necessary to sustain a binding, final judg- ment of guilt and a lawful sentence,” id., at 569), then that is the scope of the admissions implicit in the plea. B Perhaps sensing the incoherence of its effort, the majority seeks refuge in history, asserting that today’s holding “flows directly from this Court’s prior decisions.” Ante, at 3. But this history cannot prop up the Court’s decision. Start with Haynes v. United States, 390 U.S. 85, 87, n. 2 (1968), in which the Court reached the merits of a defend- ant’s constitutional challenge to his conviction despite the fact that he had pleaded guilty. Ante, at 3–4. A moment’s glance reveals that this decision is irrelevant for present purposes (which presumably explains why it was not even 16 CLASS v. UNITED STATES ALITO, J., dissenting cited in Blackledge, Menna, Tollett, the Brady trilogy, or Broce). In Haynes, the Government did not argue that the defendant’s guilty plea barred him from pressing his constitutional challenge on appeal. In fact, the Govern- ment conceded that he would be entitled to relief if his argument had merit. 390 U.S., at 100–101. No one has suggested that a defendant’s guilty plea strips an appel- late court of jurisdiction to entertain a constitutional challenge to his conviction, so of course a reviewing court need not dismiss an appeal sua sponte if the Government does not assert the plea as a bar. But that tells us nothing about what ought to happen when, as in this case, the Government does argue that the defendant relinquished his right to litigate his constitutional argument when he opted to plead guilty. One must squint even harder to figure out why the majority has dusted off Commonwealth v. Hinds, an 1869 decision of the Supreme Judicial Court of Massachusetts. Ante, at 5. Hinds involved a state-law motion (“arrest of judgment”) to set aside a conviction for a state-law crime (common law forgery), in a state-court proceeding after the defendant pleaded guilty. 101 Mass., at 210. One might already be wondering what relevance the effect of a guilty plea in state court, under state law, could have with re- spect to the effect of a guilty plea in federal court, under federal law. But in any event, what Hinds says about guilty pleas is not helpful to Class at all. In Massachu- setts at that time, motions to arrest a judgment could be maintained only on the ground that the court that ren- dered the judgment lacked jurisdiction. Mass. Gen. Stat. §79 (1860); Commonwealth v. Eagan, 103 Mass. 71, 72 (1860); 3 F. Wharton, Criminal Law §3202, p. 177 (7th rev. ed. 1874). And Massachusetts, like all the other States, can define the jurisdiction of its courts as it pleases (except insofar as federal law validly prevents). Cite as: 583 U. S. ____ (2018) 17 ALITO, J., dissenting Thus, to the extent Hinds “reflect[s] an understanding of the nature of guilty pleas,” ante, at 5, it reflects nothing more than the idea that a defendant can assert jurisdic- tional defects even after pleading guilty. That rule is utterly unremarkable and of no help to Class. Today—as well as at the time of the founding—federal courts have jurisdiction over cases charging federal crimes. See 18 U.S. C. §3231; §9, 1 Stat. 76–77. And as early as 1830, the Court rejected the suggestion that a federal court is deprived of jurisdiction if “the indictment charges an offence not punishable criminally according to the law of the land.” Ex parte Watkins, 3 Pet. 193, 203. We have repeatedly reaffirmed that proposition. See, e.g., Lamar v. United States, 240 U.S. 60, 64 (1916) (court not deprived of jurisdiction even if “the indictment does not charge a crime against the United States”); United States v. Wil- liams, 341 U.S. 58, 68–69 (1951) (same, even if “the stat- ute is wholly unconstitutional, or . . . the facts stated in the indictment do not constitute a crime”); Cotton, 535 U.S., at 630–631. And although a handful of our “post– 1867 cases” suggested that a criminal court lacked juris- diction if “the statute under which [the defendant] had been convicted was unconstitutional,” those suggestions “reflected a ‘softening’ of the concept of jurisdiction” rather than that concept’s originally understood—and modern— meaning. Danforth v. Minnesota, 552 U.S. 264, 272, n. 6 (2008). * * * In sum, the governing law in the present case is Rule 11 of the Federal Rules of Criminal Procedure. Under that Rule, an unconditional guilty plea waives all nonjurisdic- tional claims with the possible exception of the “Menna- Blackledge doctrine” created years ago by this Court. That doctrine is vacuous, has no sound foundation, and produces nothing but confusion. At a minimum, I would limit the 18 CLASS v. UNITED STATES ALITO, J., dissenting doctrine to the particular types of claims involved in those cases. I certainly would not expand its reach. I fear that today’s decision will bedevil the lower courts. I respectfully dissent

Roughly 95% of felony cases in the federal and state courts are resolved by guilty pleas.1 Therefore it is criti- cally important that defendants, prosecutors, and judges understand the consequences of these pleas. In this case, the parties have asked us to identify the claims that a defendant can raise on appeal after entering an uncondi- tional guilty plea. Regrettably, the Court provides no clear answer. By my count, the Court identifies no fewer than five rules for ascertaining the issues that can be raised. Ac- cording to the Court, a defendant who pleads guilty may assert on appeal (1) a claim that “implicates ‘the very power of the State’ to prosecute [him],” ante, at 4, (2) a claim that does not contradict the facts alleged in the charging document, ante, at 5–6, (3) a claim that “ ‘the facts alleged and admitted do not constitute a crime,’ ” ante, at 5, and (4) claims other than “case-related constitu- tional defects that ‘occurred prior to the entry of the guilty plea,’ ” ante, at 6–7 (some internal quotation marks omit- —————— 1 See United States Sentencing Commission, Overview of Federal Criminal Cases Fiscal Year 2016, p. 4 (May 2017); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006–Statistical Tables, p. 1 (rev. Nov. 22, 2010). 2 CLASS v. UNITED STATES ALITO, J., dissenting ted). In addition, the Court suggests (5) that such a de- fendant may not be able to assert a claim that “contra- dict[s] the terms of [a] written plea agreement,” ante, at 6, but whether this rule applies when the claim falls into one of the prior four categories is left unclear. How these rules fit together is anybody’s guess. And to make matters worse, the Court also fails to make clear whether its holding is based on the Constitution or some other ground. I There is no justification for the muddle left by today’s decision. The question at issue is not conceptually com- plex. In determining whether a plea of guilty prevents a defendant in federal or state court from raising a particu- lar issue on appeal, the first question is whether the Fed- eral Constitution precludes waiver. If the Federal Consti- tution permits waiver, the next question is whether some other law nevertheless bars waiver. And if no law pre- vents waiver, the final question is whether the defendant knowingly and intelligently waived the right to raise the claim on appeal. 766 Petitioner Rodney Class was charged with violating a federal statute that forbids the carrying of firearms on the grounds of the United States Capitol. See 40 U.S. C. After entering an unconditional guilty plea, he appealed his conviction, asserting that his conduct was protected by the Second Amendment and that the statute he violated is unconstitutionally vague. The Court of Appeals affirmed his conviction, holding that Class had relinquished his right to litigate these claims when he entered his unconditional plea. Analyzing this case under the framework set out above, I think the Court of Appeals was clearly correct. First, the Federal Constitution does not prohibit the waiver of the Cite as: 583 U. S. (2018) 3 ALITO, J., dissenting rights Class asserts. We have held that most personal constitutional rights may be waived, see, e.g., v. United States, and Class concedes that this is so with respect to the rights he is asserting, Tr. of Oral Arg. 5, 18. Second, no federal statute or rule bars waiver. On the contrary, Rule 11 of the Federal Rules of Criminal Proce- dure makes it clear that, with one exception that I will discuss below, a defendant who enters an unconditional plea waives all nonjurisdictional claims. Although the Rule does not say this expressly, that is the unmistakable implication of subdivision (a)(2), which allows a defendant, “[w]ith the consent of the court and the government,” to “enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.” “Where [a law] explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a con- trary intent.” Andrus v. Glover Constr. Co., 446 U.S. 608, 616–617 (1980). And here, there is strong evidence confirming that other exceptions were ruled out. The Advisory Committee’s Notes on Rule 11 make this clear, stating that an unconditional plea (with the previ- ously mentioned exception) “constitutes a waiver of all nonjurisdictional defects.” Notes on 1983 Amendments, 18 U.S. C. App., p. 911. Advisory Committee’s Notes on a federal rule of procedure “provide a reliable source of insight into the meaning of a rule, especially when, as here, the rule was enacted precisely as the Advisory Committee proposed.” United States v. Vonn, 535 U.S. 55, n. 62 Subdivision (a)(2) was adopted —————— 2 Advisory Committee’s Notes should not be equated with congres- sional committee reports and other items of legislative history. Advisory Committee’s Notes are adopted by the committee that drafts the rule; 4 CLASS v. UNITED STATES ALITO, J., dissenting against the backdrop of decisions of this Court holding that a guilty plea generally relinquishes all defenses to conviction, see, e.g., (1973), and Rule 11(a)(2) creates a limited exception to that general principle. Far from prohibiting the waiver of nonjurisdictional claims, Rule 11 actually bars the raising of such claims (once again, with the previously mentioned exception). For now, I will skip over that exception and proceed to the final question—whether Class voluntarily and intelli- gently waived his right to raise his Second Amendment and due process claims on appeal. It is not clear that he raised this question in the Court of Appeals, and in any event, this fact-specific inquiry is not within the scope of the question of law on which we granted review: “Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.” Pet. for Cert. i. The Court does not decide the case on that ground. Nor would I. II A I now turn to the one exception mentioned in the Advi- sory Committee’s Notes on Rule 11—what the Notes, rather grandly, term the “Menna- doctrine.” Advisory Committee’s Notes, 18 U.S. C. App., at 912. This “doctrine” consists of v. Perry, 417 U.S. 21 (1974), a thinly reasoned decision handed down 44 years ago, and (per curiam), a per curiam decision issued the next year. These cases hold that a defendant has the right under the —————— they are considered by the Judicial Conference when it recommends promulgation of the rule; they are before this Court when we prescribe the rule under the Rules Enabling Act, 28 U.S. C. and they are submitted to Congress together with the text of the rule under 28 U.S. C. Cite as: 583 U. S. (2018) 5 ALITO, J., dissenting Due Process Clause of the Fourteenth Amendment to contest certain issues on appeal even if the defendant entered an unconditional guilty plea. Since a rule of procedure cannot abrogate a constitutional right, the Advisory Committee’s Notes on Rule 11 specify that Rule 11(a)(2) “has no application” to the “Menna- doctrine” and “should not be interpreted as either broad- ening or narrowing [that] doctrine or as establishing procedures for its application.” Advisory Committee’s Notes, 18 U.S. C. App., at 912. Because this doctrine is the only exception recognized in Rule 11 and because the doctrine figures prominently in the opinion of the Court, it is important to examine its foundation and meaning. B and Menna represented marked departures from our prior decisions. Before they were handed down, our precedents were clear: When a defendant pleaded guilty to a crime, he relinquished his right to litigate all nonjurisdictional challenges to his conviction (except for the claim that his plea was not voluntary and intelligent), and the prosecution could assert this forfeiture to defeat a subsequent appeal. The theory was easy to understand. As we explained in our view was that “a guilty plea represents a break in the chain of events which has pre- ceded it in the criminal process.” The defendant’s decision to plead guilty extinguished his right to litigate whatever “possible defenses” or “constitutional plea[s] in abatement” he might have pursued at trial or on appeal. at –268. Guilty pleas were understood to have this effect because a guilty plea comprises both fac- tual and legal concessions. Hence, we said in a defendant who pleads guilty is barred from contesting not only the “historical facts” but also the “constitutional significance” of those facts, even if he failed to “correctly 6 CLASS v. UNITED STATES ALITO, J., dissenting apprais[e]” that significance at the time of his plea. at (emphasis added). When declared that a guilty plea encompasses all legal and factual concessions necessary to authorize the conviction, it was simply reiterating a principle we had enunciated many times before, most recently in the so- called “ trilogy.” See v. United States, 397 U.S. 742, 748 (“[T]he plea is more than an admis- sion of past conduct; it is the defendant’s consent that judgment of conviction may be entered”); 397 U.S., at 774 (a defendant who pleads guilty “assumes the risk of ordinary error in either his or his attorney’s as- sessment of the law and facts”); As we put it in Boykin v. Alabama, “[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” On the strength of that rule, we held that defendants who pleaded guilty forfeited a variety of important consti- tutional claims. For instance, a defendant who pleaded guilty could not attack his conviction on the ground that the prosecution violated the Equal Protection Clause by systematically excluding African-Americans from grand juries in the county where he was indicted. at 266. Nor could he argue that the prosecution unlawfully coerced his confession—even if the confession was the only evidence supporting the conviction. at 768; at 796–. Nor could he assert that his statute of conviction employed an unconstitutional penalty provision; his consent to be punished under the statute precluded this defense. at 756–757. Reflecting our general thinking, then-Judge Burger ex- plained: “[I]f voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses Cite as: 583 U. S. (2018) 7 ALITO, J., dissenting known and unknown. And such is the law.” Edwards v. United States, (footnote omitted); see also A. Bishop, Waivers in Pleas of Guilty, 60 F. R. D. 513, 525–526 (1974) (summarizing the state of the law on the eve of : “All the bulwarks of the fortress of defense are abandoned by the plea of The plea of guilty surrenders all defenses whatever and all nonjurisdictional defects” (collecting cases)). III and Menna diverged from these prior prece- dents, but neither case provided a clear or coherent expla- nation for the departure. A In the Court held that a defendant who pleaded guilty could nevertheless challenge his conviction on the ground that his right to due process was violated by a vindictive –31. The Court asserted that this right was “markedly different” from the equal protection and Fifth Amendment rights at stake in and the trilogy because it “went to the very power of the State to bring the defendant into court to answer the charge brought against him.” The meaning of this distinction, however, is hard to grasp. The most natural way to understand ’s refer- ence to “the very power of the State” would be to say that an argument survives a guilty plea if it attacks the court’s jurisdiction. After all, that is usually what we mean when we refer to the power to adjudicate. See, e.g., Arbaugh v. Y & H Corp., ; United States v. Cotton, ; Steel But that cannot be what meant. First, the defendant in had been tried in state court in North Carolina for a state-law offense, and 8 CLASS v. UNITED STATES ALITO, J., dissenting the jurisdiction of state courts to entertain such prosecu- tions is purely a matter of state law (unless Congress validly and affirmatively ousts their jurisdiction— something that had not happened in that case).3 Second, a rule that jurisdictional defects alone survive a guilty plea would not explain the result in itself. Argu- ments attacking a court’s subject-matter jurisdiction can neither be waived nor forfeited. See, e.g., Wisconsin Dept. of 3 ; Miller v. Roberts, But the due process right at issue in was per- fectly capable of being waived or forfeited—as is just about every other right that is personal to a criminal defendant. See, e.g., 501 U.S., at So if the “very power to prosecute” theory does not refer to jurisdiction, what else might it mean? The only other possibility that comes to mind is that it might mean that a defendant can litigate a claim if it asserts a right not to be tried, as opposed to a right not to be convicted. But we have said that “virtually all rights of criminal defendants” are “merely right[s] not to be convicted,” as distin- guished from “right[s] not to be tried.” Even when a constitu- tional violation requires the dismissal of an indictment, that “does not mean that [the] defendant enjoy[ed] a ‘right not to be tried’ ” on the charges. United The rule could hardly be otherwise. Most constitutional defenses (and plenty of statutory defenses), if successfully asserted in a pretrial motion, deprive the prosecution of the “power” to proceed to trial or secure a conviction. If that remedial consequence converted them all into rights —————— 3 Even for cases prosecuted in federal court, an alleged vindictive prosecution does not present a jurisdictional defect. See 18 U.S. C. Cite as: 583 U. S. (2018) 9 ALITO, J., dissenting not to be prosecuted, would have no discernible limit. “We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ ” Digital Equipment Indeed, “all liti- gants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial.” Van It is true that we have spoken of a distinction between a right not to be tried and a right not to be convicted in one context: when defining the scope of the collateral order doctrine. E.g., at 265–. That is, we have allowed defendants in federal criminal cases to take an immediate appeal from the denial of a pretrial motion when the right at issue is properly understood to be a right not to be tried. A prime example is a case in which a defendant claims that a prosecution would violate the Double Jeopardy Clause. See Abney v. United States, 431 U.S. 651, 662 (1977). Allowing an interlocutory appeal in that situation protects against all the harms that flow from the prolongation of a case that should never have been brought. See But that rationale cannot justify the Menna- doctrine, because allowing a defendant to appeal after a guilty plea does not cut short a prosecution that should never have been brought. On the contrary, it prolongs the litigation. So the distinction drawn in our collateral order cases makes no sense in distinguishing between the claims that should and the claims that should not survive a guilty plea. Nor, in any event, would such a rule be consistent with the decision in because we have held that an unsuccessful vindictive prosecution claim may not be appealed before trial. United And none of this would do any good for Class, for we have never 10 CLASS v. UNITED STATES ALITO, J., dissenting permitted a defendant to appeal a pretrial order rejecting a constitutional challenge to the statute the defendant allegedly violated. In fact we have repudiated the very suggestion. The upshot is that the supposed “right not to be prose- cuted” has no intelligible meaning in this context. And identified no basis for this new right in the text of the Constitution or history or prior precedent. What is more, it did all this without bothering to consider the understanding of a guilty plea under the law of the State where the defendant was convicted or anything that was said to him or that he said at the time of his plea. B If the thinking behind is hard to follow, Menna may be worse. In that case, the Court held that a defendant who pleaded guilty could challenge his convic- tion on double jeopardy The case was decided by a three-page per curiam opinion, its entire analysis confined to a single footnote. And the footnote, rather than elucidating what was said in Black- ledge, substituted a different rationale. Arguing that and the other prior related cases did not preclude appellate review of the double jeopardy claim, the Court wrote: “[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State’s imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt.” Menna, –63, n. 2. The wording of the final sentence is not easy to parse, Cite as: 583 U. S. (2018) 11 ALITO, J., dissenting but I interpret the Court’s reasoning as follows: A defend- ant who pleads guilty does no more than admit that he committed the essential conduct charged in the indict- ment; therefore a guilty plea allows the litigation on ap- peal of any claim that is not inconsistent with the facts that the defendant necessarily admitted. If that is the correct meaning, the sentence would overrule many of the cases that it purported to distinguish, including which involved an unconstitutional grand jury claim. It would contradict much that the Court had previously said about the effect of a guilty plea. See, e.g., Boykin, 395 U.S., at (“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction”). And it would permit a defendant who pleads guilty to raise on appeal a whole host of claims, including, for example, the denial of motions to suppress evidence allegedly obtained in violation of the Fourth, Fifth, or Sixth Amendments. See, e.g., (most Fourth Amendment claims have “no bearing on guilt”). A holding of that scope is not what one expects to see in a footnote in a per curiam opin- ion, but if the Court meant less, its meaning is unclear. C When the Court returned to and Menna in United (19), the Court essentially repudiated the theories offered in those earlier cases. (The Court terms this a “reaffirm[ation].” Ante, at 6.) Like Menna, involved a defendant (actually two defendants) who pleaded guilty but then sought to attack their convictions on double jeopardy 488 U.S., at 565. This time, however, the Court held that their guilty pleas prevented them from litigating their claims. The Court began by specifically disavowing Menna’s suggestion that a guilty plea admits only “ ‘factual guilt,’ ” meaning “the acts described in the indictments.” 12 CLASS v. UNITED STATES ALITO, J., dissenting –569. Instead, the Court explained, an unconditional guilty plea admits “all of the factual and legal elements necessary to sustain a binding, final judg- ment of guilt and a lawful sentence.” (emphasis added). “By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime.” Such “admissions,” continued, are “necessarily made upon entry of a voluntary plea of ” at 573–574. And invoking the Court added that it makes no difference whether the defendant “ ‘may not have correctly appraised the constitutional significance of certain historical facts.’ ” ( ). Thus, the Court concluded, a defendant’s decision to plead guilty necessarily extin- guishes whatever “potential defense[s]” he might have asserted in an effort to show that it would be unlawful to hold him liable for his So much for Menna. As for by holding that the defendants’ dou- ble jeopardy rights were extinguished by their pleas, necessarily rejected the idea that a right not to be tried survives an unconditional guilty plea. See Abney, 431 U.S., at 662 (holding for collateral-order-doctrine purposes that the Double Jeopardy Clause confers a right not to be tried). While thus rejected the reasoning in and Menna, the Court was content to distinguish those cases on the ground that they involved defendants who could succeed on appeal without going beyond “the exist- ing record,” whereas the defendants in would have to present new evidence.4 —————— 4 The majority asserts that, unlike the defendants in Class can make out his constitutional arguments without needing to undertake any factual development. Ante, at 6. It is difficult to see how that can Cite as: 583 U. S. (2018) 13 ALITO, J., dissenting IV A This is where the Menna- doctrine stood when we heard this case. Now, instead of clarifying the law, the Court sows new confusion by reiterating with seeming approval a string of catchphrases. The Court repeats the line that an argument survives if it “implicates ‘the very power of the State’ to prosecute the defendant,” ante, at 4 ( ), but this shibboleth is no more intelligible now than it was when first incanted in The Court also parrots the rule set out in the Menna footnote—that the only argu- ments waived by a guilty plea are those that contradict the facts alleged in the charging document, see ante, at 5– 6, even though that rule is inconsistent with the trilogy, and —and even though this reading —————— be true. Class’s Second Amendment argument is that banning firearms in the Maryland Avenue parking lot of the Capitol Building goes too far, at least as applied to him specifically. As his court-appointed amicus presented it to the Court of Appeals, this argument depends on Class’s own personal characteristics, including his record of mental health and law abidingness, as well as characteristics specific to the Maryland Avenue parking lot, including, inter alia, its distance from the Capitol Building, the extent to which it is unsecured, the extent to which it is publicly accessible, what business typically occurs there, who regularly congregates there, and the nature of security screening visitors must pass through upon entering. See Opening Brief of Court- Appointed Amicus Curiae in Support of Appellant in No. 15–3015 (CADC), pp. 34–35, 41–45. Similarly, Class’s due process argument requires an assessment of how difficult it would be for an average person to determine that the Maryland Avenue lot is part of the Capitol Grounds, which turns on the extent to which the lot is publicly acces- sible, how heavily trafficked it is and by what types of vehicles, whether there are signs indicating it is part of the Capitol Grounds or that guns are prohibited and where such signs are located, and whether there are security gates or checkpoints nearby. See These argu- ments require facts. I understand the majority opinion to preclude Class from gathering any of them that are not already in the District Court record. 14 CLASS v. UNITED STATES ALITO, J., dissenting would permit a defendant who pleads guilty to raise an uncertain assortment of claims never before thought to survive a guilty plea. For example, would this rule permit a defendant to argue that his prosecution is barred by a statute of limita- tions or by the Speedy Trial Act? Presumably the answer is yes. By admitting commission of the acts alleged in an indictment or complaint, a defendant would not concede that the charge was timely. What about the argument that a defendant’s alleged conduct does not violate the statute of conviction? Here again, the rule barring only those claims inconsistent with the facts alleged in the indictment or complaint would appear to permit the issue to be raised on appeal, but the Court says that a defendant who pleads guilty “has admitted the charges against him.” Ante, at 7. What does this mean, exactly? The majority is coy, but “admit[ing] the charges against him” would ap- pear to mean admitting that his conduct satisfies each element of the statute he is charged with violating. It must mean that because we have held that if a defendant does not understand that he is admitting his conduct satisfies each element of the crime, his guilty plea is in- voluntary and unintelligent and therefore invalid. Hen- So if a defendant who pleads guilty “admit[s] the charges against him,” and if he does not claim that his plea was involun- tary or unintelligent, his plea must be taken as an admis- sion that he did everything the statute forbids. But if that is so, then what about the rule suggested by the old Massachusetts opinion the Court touts? There, Justice Ames wrote that a guilty plea does not waive the right to argue that “ ‘the facts alleged and admitted do not constitute a crime against the laws of the Common- wealth.’ ” Ante, at 5 ( Commonwealth v. Hinds, 101 Mass. 209, 210 (1869)). Does the Court agree with Justice Ames, or not? Cite as: 583 U. S. (2018) 15 ALITO, J., dissenting Approaching the question from the opposite direction, the Court says that a guilty plea precludes a defendant from litigating “the constitutionality of case-related gov- ernment conduct that takes place before the plea is en- tered.” Ante, at 8. This category is most mysterious. I thought Class was arguing that the Government violated the Constitution at the moment when it initiated his That sounds like he is trying to attack “the constitutionality of case-related government conduct that [took] place before the plea [was] entered.” Yet the Court holds that he may proceed. Why? Finally, the majority instructs that “a valid guilty plea relinquishes any claim that would contradict the ‘admis- sions necessarily made upon entry of a voluntary plea of ’ ” ( –574). I agree with that statement of the rule, but what the Court fails to acknowledge is that the scope of this rule depends on the law of the particular jurisdiction in question. If a defendant in federal court is told that under Rule 11 an unconditional guilty plea waives all nonjurisdictional claims (or as put it, admits “all of the factual and legal elements necessary to sustain a binding, final judg- ment of guilt and a lawful sentence,” ), then that is the scope of the admissions implicit in the plea. B Perhaps sensing the incoherence of its effort, the majority seeks refuge in history, asserting that today’s holding “flows directly from this Court’s prior decisions.” Ante, at 3. But this history cannot prop up the Court’s decision. Start with (1968), in which the Court reached the merits of a defend- ant’s constitutional challenge to his conviction despite the fact that he had pleaded Ante, at 3–4. A moment’s glance reveals that this decision is irrelevant for present purposes (which presumably explains why it was not even 16 CLASS v. UNITED STATES ALITO, J., dissenting cited in Menna, the trilogy, or ). In Haynes, the Government did not argue that the defendant’s guilty plea barred him from pressing his constitutional challenge on appeal. In fact, the Govern- ment conceded that he would be entitled to relief if his argument had –101. No one has suggested that a defendant’s guilty plea strips an appel- late court of jurisdiction to entertain a constitutional challenge to his conviction, so of course a reviewing court need not dismiss an appeal sua sponte if the Government does not assert the plea as a bar. But that tells us nothing about what ought to happen when, as in this case, the Government does argue that the defendant relinquished his right to litigate his constitutional argument when he opted to plead One must squint even harder to figure out why the majority has dusted off Commonwealth v. Hinds, an 1869 decision of the Supreme Judicial Court of Massachusetts. Ante, at 5. Hinds involved a state-law motion (“arrest of judgment”) to set aside a conviction for a state-law crime (common law forgery), in a state-court proceeding after the defendant pleaded One might already be wondering what relevance the effect of a guilty plea in state court, under state law, could have with re- spect to the effect of a guilty plea in federal court, under federal law. But in any event, what Hinds says about guilty pleas is not helpful to Class at all. In Massachu- setts at that time, motions to arrest a judgment could be maintained only on the ground that the court that ren- dered the judgment lacked jurisdiction. Mass. Gen. Stat. (1860); (1860); 3 F. Wharton, Criminal Law p. 177 (7th rev. ed. 1874). And Massachusetts, like all the other States, can define the jurisdiction of its courts as it pleases (except insofar as federal law validly prevents). Cite as: 583 U. S. (2018) 17 ALITO, J., dissenting Thus, to the extent Hinds “reflect[s] an understanding of the nature of guilty pleas,” ante, at 5, it reflects nothing more than the idea that a defendant can assert jurisdic- tional defects even after pleading That rule is utterly unremarkable and of no help to Class. Today—as well as at the time of the founding—federal courts have jurisdiction over cases charging federal crimes. See 18 U.S. C. –77. And as early as 1830, the Court rejected the suggestion that a federal court is deprived of jurisdiction if “the indictment charges an offence not punishable criminally according to the law of the land.” Ex parte Watkins, We have repeatedly reaffirmed that proposition. See, e.g., Lamar v. United States, (court not deprived of jurisdiction even if “the indictment does not charge a crime against the United States”); United (same, even if “the stat- ute is wholly unconstitutional, or the facts stated in the indictment do not constitute a crime”); Cotton, 535 U.S., at –631. And although a handful of our “post– 1867 cases” suggested that a criminal court lacked juris- diction if “the statute under which [the defendant] had been convicted was unconstitutional,” those suggestions “reflected a ‘softening’ of the concept of jurisdiction” rather than that concept’s originally understood—and modern— meaning. 552 U.S. 2, n. 6 (2008). * * * In sum, the governing law in the present case is Rule 11 of the Federal Rules of Criminal Procedure. Under that Rule, an unconditional guilty plea waives all nonjurisdic- tional claims with the possible exception of the “Menna- doctrine” created years ago by this Court. That doctrine is vacuous, has no sound foundation, and produces nothing but confusion. At a minimum, I would limit the 18 CLASS v. UNITED STATES ALITO, J., dissenting doctrine to the particular types of claims involved in those cases. I certainly would not expand its reach. I fear that today’s decision will bedevil the lower courts. I respectfully dissent

Justice Kennedy

majority

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

2018-06-04

https://www.courtlistener.com/opinion/4503819/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4503819/

2017-020

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” Ibid. One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” Id., at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” Id., at 152 (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. Ibid. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” Ibid. The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” Ibid. (emphasis deleted). B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” §24–34–601(1). CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§24–34–306, 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See §24–34–306(9). Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” §24–34–605. Colorado law does not permit the Commission to assess money damages or fines. §§24–34–306(9), 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in August 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, id., at 35, 48, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, id., at 43. The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. Id., at 76. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court same-sex couples on this basis. Id., at 72. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” Id., at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” Id., at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id., at 879; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. Id., at 57a. The Commission ordered Phillips to “cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” Ibid. It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with . . . this Order.” Id., at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Ibid. Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, supra, at 879, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The Cite as: 584 U. S. ____ (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. ___ (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. ___ (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id., at ___ (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See Newman v. Piggy Park Enterprises, Inc., 390 U.S. 400, 402, n. 5 (1968) (per curiam); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572 (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. ____ (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, §31 (2012); 370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. ____ (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Id., at 30. Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. ____ (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.” Ibid. A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. ___, ___–___ (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. ____ (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Id., at 534. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Id., at 547. Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” Id., at 540. In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” id., at 545, of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. Id., at 537. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is re- versed. It is so ordered. Cite as: 584 U. S. ____ (2018) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same- sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimina- tion on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colo- rado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Com- mission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to pro- tect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amend- ment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defin- ing whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decora- tions on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was incon- sistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capac- ity as the owner of a business serving the public, might Cite as: 584 U. S. (2018) 3 Opinion of the Court have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be de- termined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involv- ing facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Chris- tian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” One of Phillips’ religious beliefs is that “God’s intention for mar- riage from the beginning of history is that it is and should be the union of one man and one woman.” To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mul- lins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To pre- pare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in order- ing a cake for “our wedding.” (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. He ex- plained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” The couple left the shop without further discussion. The following day, Craig’s mother, who had accompa- nied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teach- ings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” B For most of its history, Colorado has prohibited discrim- ination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens Cite as: 584 U. S. (2018) 5 Opinion of the Court in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servi- tude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrim- ination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteris- tics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a per- son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta- tus, national origin, or ancestry, the full and equal en- joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac- commodation.” –34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” CADA establishes an administrative system for the resolution of discrimination claims. Complaints of dis- crimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Divi- sion investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court in turn, decides whether to initiate a formal hearing be- fore a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven- member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See Available reme- dies include, among other things, orders to cease-and- desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” Colorado law does not permit the Commission to assess money damages or fines. 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in August 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. The investigation found that Phillips had de- clined to sell custom wedding cakes to about six other Cite as: 584 U. S. (2018) 7 Opinion of the Court same-sex couples on this basis. The investiga- tor also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebra- tion because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross- motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by com- pelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideolog- ical point of view.” at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. ; App. to Pet. for Cert. 82a– 83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both consti- tutional claims. The Commission affirmed the ALJ’s decision in full. at 57a. The Commission ordered Phillips to “cease and desist from discriminating against same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with this Order.” at 58a. The Commission additionally required Phillips to prepare “quarterly com- pliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 283 (2015). The court also rejected the argu- ment that the Commission’s order violated the Free Exer- cise Clause. Relying on this Court’s precedent in Smith, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicabil- ity” on the ground that following the law would interfere with religious practice or The Cite as: 584 U. S. (2018) 9 Opinion of the Court court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colo- rado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances pro- tected forms of expression. As this Court observed in Obergefell v. Hodges, 576 U. S. (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” at (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applica- ble public accommodations law. See (per curiam); see also (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to 10 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma in- consistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumera- ble goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s prece- dents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is pre- sented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in Cite as: 584 U. S. (2018) 11 Opinion of the Court his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way con- sistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administra- tion of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, (2012); At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor, 570 U.S. 744 (2013), or Obergefell. Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the store- keeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned 12 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bak- ery Sensual, Inc., Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a differ- ent result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say- ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phil- lips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meet- ing, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the Cite as: 584 U. S. (2018) 13 Opinion of the Court state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” Standing alone, these statements are susceptible of different inter- pretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappro- priate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimi- nation throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetori- 14 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court cal—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappro- priate for a Commission charged with the solemn respon- sibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu 540– 542 (1993); (Scalia, J., concurring in part and concurring in judgment). In this case, however, the re- marks were made in a very different context—by an adju- dicatory body deciding a particular case. Another indication of hostility is the difference in treat- ment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refus- ing service. It made these determinations because, in the Cite as: 584 U. S. (2018) 15 Opinion of the Court words of the Division, the requested cake included “word- ing and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be at- tributed to the customer, not to the baker. Yet the Divi- sion did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depict- ing Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brown- ies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience- based objections as legitimate, but treated his as illegiti- mate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity 16 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested n. 8. In those cases, the court continued, there was no impermissible discrimi- nation because “the Division found that the bakeries refuse[d] the patron’s request because of the offensive nature of the requested message.” A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam, 582 U. S. – (2017) (opinion of ALITO, J.) (slip op., at 22–23). The Colorado court’s at- tempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treat- ment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hos- tility to a religion or religious viewpoint. In Church of Lukumi Babalu the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose Cite as: 584 U. S. (2018) 17 Opinion of the Court regulations that are hostile to the religious beliefs of af- fected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remem- ber their own high duty to the Constitution and to the rights it secures.” Factors relevant to the assessment of governmental neutrality include “the historical background of the deci- sion under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contempo- raneous statements made by members of the decisionmak- ing body.” In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phil- lips’ religious beliefs. The Commission gave “every ap- pearance,” of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. It hardly requires restating that government has no role in deciding or even suggest- ing whether the religious ground for Phillips’ conscience- based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been 18 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N Opinion of the Court weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ com- ments—comments that were not disavowed at the Com- mission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commis- sion’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How- ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is re- versed. It is so ordered. Cite as: 584 U. S. (2018) 1 KAGAN, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–111 MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

Justice Kagan

concurring

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

2018-06-04

https://www.courtlistener.com/opinion/4503819/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4503819/

2017-020

“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” Ante, at 12. I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding. The Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.” Ante, at 14, 18. In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Ante, at 15; see post, at 3 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring religious reasons to baking a wedding cake for a same-sex couple—did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as be- tween the Jack cases and the Phillips case. See ante, at 15. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested “offensive [in] nature.” Ante, at 16 (inter- nal quotation marks omitted). As the Court states, a “principled rationale for the difference in treatment” can- not be “based on the government’s own assessment of offensiveness.” Ibid. What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. §24–34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay peo- ple and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoy- ment” of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious Cite as: 584 U. S. ____ (2018) 3 KAGAN, J., concurring belief.* I read the Court’s opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals)—“quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished.” Ante, at 15. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court —————— * JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” Post, at 4. That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrat- ing same-sex marriage.” Ibid.; see post, at 3, 6, 8–9. But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other stand- ard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with “religious significance.” Post, at 11. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disap- proves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n. 5 (1968) (per curiam) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante, at 9. A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. For that reason, Colorado can treat a baker who discrimi- nates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur. Cite as: 584 U. S. ____ (2018) 1 GORSUCH, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

“[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” Ante, at 12. I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding. The Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.” Ante, at 14, 18. In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Ante, at 15; see post, at 3 (GINSBURG, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring religious reasons to baking a wedding cake for a same-sex couple—did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as be- tween the Jack cases and the Phillips case. See ante, at 15. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested “offensive [in] nature.” Ante, at 16 (inter- nal quotation marks omitted). As the Court states, a “principled rationale for the difference in treatment” can- not be “based on the government’s own assessment of offensiveness.” What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. –34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay peo- ple and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoy- ment” of public accommodations irrespective of their sexual orientation. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious Cite as: 584 U. S. (2018) 3 KAGAN, J., concurring belief.* I read the Court’s opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals)—“quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished.” Ante, at 15. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court —————— * JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” Post, at 4. That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrat- ing same-sex marriage.” ; see post, at 3, 6, 8–9. But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other stand- ard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante, at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to JUSTICE GORSUCH’S view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with “religious significance.” Post, at 11. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disap- proves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc., (per curiam) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante, at 9. A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination. 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N KAGAN, J., concurring says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. For that reason, Colorado can treat a baker who discrimi- nates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur. Cite as: 584 U. S. (2018) 1 GORSUCH, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–111 MASTERPIECE CAKESHOP, LTD., ET AL., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, ET AL.

Justice Ginsburg

dissenting

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n

2018-06-04

https://www.courtlistener.com/opinion/4503819/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

https://www.courtlistener.com/api/rest/v3/clusters/4503819/

2017-020

There is much in the Court’s opinion with which I agree. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ” Ante, at 12. Gay persons may be spared from “indignities when they seek goods and services in an open market.” Ante, at 18.1 I —————— 1 As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. JUSTICE THOMAS acknowledges that for conduct to constitute protected expres- sion, the conduct must be reasonably understood by an observer to be communicative. Ante, at 4 (citing Clark v. Community for Creative 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction. The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.” Ante, at 17. This conclusion rests on evidence said to show the Colorado Civil Rights Commission’s (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted “disparate consideration of Phillips’ case compared to the cases of ” three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, at 18. The Court also finds hostility in statements made at two public hearings on Phillips’ appeal to the Commission. Ante, at 12–14. The different outcomes the Court features —————— Non-Violence, 468 U.S. 288, 294 (1984)). The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. See ante, at 5–6 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips “considers” and “sees” his work). But Phillips submitted no evidence showing that an objec- tive observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation of wedding cakes’ symbolism was forthcoming “even amongst those who might be expected to be the experts”); id., at 104–105 (the cake cutting tradition might signify “the bride and groom . . . as appropriating the cake” from the bride’s parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive con- duct. Cf. ante, at 7, n. 2 (THOMAS, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557, 568–579 (1995) (citing previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington, 418 U.S. 405, 410 (1974) (observing the Court’s decades-long recognition of the symbolism of flags). Cite as: 584 U. S. ____ (2018) 3 GINSBURG, J., dissenting do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify re- versing the judgment below. I On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ” App. to Pet. for Cert. 319a; see id., at 300a, 310a. In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold. One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not dis- criminate” and “accept[s] all humans.” Id., at 301a (inter- nal quotation marks omitted). The second bakery owner 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.” Id., at 310a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the re- quested message. Id., at 319a.2 Jack filed charges against each bakery with the Colo- rado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treat- ment and denial of goods or services based on his Chris- tian religious beliefs. Id., at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for de- signs demeaning people whose dignity the Colorado Anti- discrimination Act (CADA) protects. See id., at 305a, 314a, 324a. The Commission summarily affirmed the Division’s no-probable-cause finding. See id., at 326a– 331a. The Court concludes that “the Commission’s considera- tion of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.” Ante, at 15. See also ante, at 5–7 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her reli- gion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell —————— 2 The record provides no ideological explanation for the bakeries’ re- fusals. Cf. ante, at 1–2, 9, 11 (GORSUCH, J., concurring) (describing Jack’s requests as offensive to the bakers’ “secular” convictions). Cite as: 584 U. S. ____ (2018) 5 GINSBURG, J., dissenting to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wed- ding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, at 3–4, 9–10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohib- its precisely the discrimination Craig and Mullins encoun- tered. See supra, at 1. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.3 The fact that Phillips might sell other cakes and cookies to gay and lesbian customers4 was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex —————— 3 JUSTICE GORSUCH argues that the situations “share all legally sa- lient features.” Ante, at 4 (concurring opinion). But what critically differentiates them is the role the customer’s “statutorily protected trait,” ibid., played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex wed- dings.” Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 3. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 4–6 (GORSUCH, J., concurring). 4 But see ante, at 7 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union). 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Chris- tian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 15. Nor was the Colorado Court of Appeals’ “difference in treatment of these two instances . . . based on the govern- ment’s own assessment of offensiveness.” Ante, at 16. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the re- quested product would literally display. As the Court recognizes, a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all.” Ante, at 2.5 The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages —————— 5 The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.” Ante, at 15. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be dis- cussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/ wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8–9 (GORSUCH, J., concur- ring); it is between a cake with a particular design and one whose form was never even discussed. Cite as: 584 U. S. ____ (2018) 7 GINSBURG, J., dissenting in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 (“The Division found that the bakeries did not refuse [Jack’s] request because of his creed, but rather because of the offensive nature of the requested mes- sage. . . . [T]here was no evidence that the bakeries based their decisions on [Jack’s] religion . . . [whereas Phillips] discriminat[ed] on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado Legisla- ture’s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 9–10. To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. II Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mul- lins. The proceedings involved several layers of independ- ent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a–6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for sum- mary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colo- 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting rado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526–528. * * * For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule

There is much in the Court’s opinion with which I agree. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, 0. “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ” Ante, 2. Gay persons may be spared from “indignities when they seek goods and services in an open market.” Ante, 8.1 I —————— 1 As JUSTICE THOMAS observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. JUSTICE THOMAS acknowledges that for conduct to constitute protected expres- sion, the conduct must be reasonably understood by an observer to be communicative. Ante, at 4 (citing Clark v. Community for Creative 2 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction. The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.” Ante, 7. This conclusion rests on evidence said to show the Colorado Civil Rights Commission’s (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted “disparate consideration of Phillips’ case compared to the cases of ” three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, 8. The Court also finds hostility in statements made at two public hearings on Phillips’ appeal to the Commission. Ante, 2–14. The different outcomes the Court features —————— Non-Violence, ). The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. See ante, at 5–6 (THOMAS, J., concurring in part and concurring in judgment) (describing how Phillips “considers” and “sees” his work). But Phillips submitted no evidence showing that an objec- tive observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation of wedding cakes’ symbolism was forthcoming “even amongst those who might be expected to be the experts”); 04–105 (the cake cutting tradition might signify “the bride and groom as appropriating the cake” from the bride’s parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive con- duct. Cf. ante, at 7, n. 2 (THOMAS, J., concurring in part and concurring in judgment); (citing previous cases recognizing parades to be expressive); (noting precedents suggesting nude dancing is expressive conduct); 410 (1974) (observing the Court’s decades-long recognition of the symbolism of flags). Cite as: 584 U. S. (2018) 3 GINSBURG, J., dissenting do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify re- versing the judgment below. I On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ” App. to Pet. for Cert. 319a; see 00a, 310a. In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold. One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not dis- criminate” and “accept[s] all humans.” 01a (inter- nal quotation marks omitted). The second bakery owner 4 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.” 10a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the re- quested message. 19a.2 Jack filed charges against each bakery with the Colo- rado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treat- ment and denial of goods or services based on his Chris- tian religious beliefs. at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for de- signs demeaning people whose dignity the Colorado Anti- discrimination Act (CADA) protects. See 05a, 314a, 324a. The Commission summarily affirmed the Division’s no-probable-cause finding. See 26a– 331a. The Court concludes that “the Commission’s considera- tion of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.” Ante, 5. See also ante, at 5–7 (GORSUCH, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her reli- gion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell —————— 2 The record provides no ideological explanation for the bakeries’ re- fusals. Cf. ante, –2, 9, 11 (GORSUCH, J., concurring) (describing Jack’s requests as offensive to the bakers’ “secular” convictions). Cite as: 584 U. S. (2018) 5 GINSBURG, J., dissenting to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wed- ding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, –4, 9–10 (GORSUCH, J., concurring). Colorado, the Court does not gainsay, prohib- its precisely the discrimination Craig and Mullins encoun- tered. See Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.3 The fact that Phillips might sell other cakes and cookies to gay and lesbian customers4 was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex —————— 3 JUSTICE GORSUCH argues that the situations “share all legally sa- lient features.” Ante, at 4 (concurring opinion). But what critically differentiates them is the role the customer’s “statutorily protected trait,” ib played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex wed- dings.” Ante, at 6 (GORSUCH, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 4–6 (GORSUCH, J., concurring). 4 But see ante, at 7 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union). 6 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Chris- tian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, 5. Nor was the Colorado Court of Appeals’ “difference in treatment of these two instances based on the govern- ment’s own assessment of offensiveness.” Ante, 6. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the re- quested product would literally display. As the Court recognizes, a refusal “to design a special cake with words or images might be different from a refusal to sell any cake at all.” Ante, at 2.5 The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages —————— 5 The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.” Ante, 5. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be dis- cussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/ wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8–9 (GORSUCH, J., concur- ring); it is between a cake with a particular design and one whose form was never even discussed. Cite as: 584 U. S. (2018) 7 GINSBURG, J., dissenting in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 (“The Division found that the bakeries did not refuse [Jack’s] request because of his creed, but rather because of the offensive nature of the requested mes- sage. [T]here was no evidence that the bakeries based their decisions on [Jack’s] religion [whereas Phillips] discriminat[ed] on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado Legisla- ture’s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 9–10. To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, 0. II Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mul- lins. The proceedings involved several layers of independ- ent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a–6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for sum- mary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colo- 8 MASTERPIECE CAKESHOP, LTD. v. COLORADO CIVIL RIGHTS COMM’N GINSBURG, J., dissenting rado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see at 526–528. * * * For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule

Justice Ginsburg

majority

Campbell-Ewald v. Gomez

2016-02-09

https://www.courtlistener.com/opinion/3177215/campbell-ewald-v-gomez/

https://www.courtlistener.com/api/rest/v3/clusters/3177215/

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defend- ant’s continuing denial of liability, adversity between the parties persists. This case presents a second question. The claim in suit concerns performance of the petitioner’s contract with the Federal Government. Does the sovereign’s immunity from suit shield the petitioner, a private enterprise, as well? We hold that the petitioner’s status as a Government contractor does not entitle it to “derivative sovereign immunity,” i.e., the blanket immunity enjoyed by the 2 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court sovereign. I The Telephone Consumer Protection Act (TCPA or Act) 48 Stat. 1064, 47 U.S. C. §227(b)(1)(A)(iii), prohibits any person, absent the prior express consent of a telephone- call recipient, from “mak[ing] any call . . . using any auto- matic telephone dialing system . . . to any telephone num- ber assigned to a paging service [or] cellular telephone service.” A text message to a cellular telephone, it is undisputed, qualifies as a “call” within the compass of §227(b)(1)(A)(iii). 768 F.3d 871, 874 (CA9 2014). For damages occasioned by conduct violating the TCPA, §227(b)(3) authorizes a private right of action. A plaintiff successful in such an action may recover her “actual monetary loss” or $500 for each violation, “whichever is greater.” Damages may be trebled if “the defendant will- fully or knowingly violated” the Act. Petitioner Campbell-Ewald Company (Campbell) is a nationwide advertising and marketing communications agency. Beginning in 2000, the United States Navy en- gaged Campbell to develop and execute a multimedia recruiting campaign. In 2005 and 2006, Campbell pro- posed to the Navy a campaign involving text messages sent to young adults, the Navy’s target audience, encour- aging them to learn more about the Navy. The Navy approved Campbell’s proposal, conditioned on sending the messages only to individuals who had “opted in” to receipt of marketing solicitations on topics that included service in the Navy. App. 42. In final form, the message read: “Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [ phone number].” 768 F.3d, at 873. Campbell then contracted with Mindmatics LLC, which Cite as: 577 U. S. ____ (2016) 3 Opinion of the Court generated a list of cellular phone numbers geared to the Navy’s target audience—namely, cellular phone users between the ages of 18 and 24 who had consented to re- ceiving solicitations by text message. In May 2006, Mindmatics transmitted the Navy’s message to over 100,000 recipients. Respondent Jose Gomez was a recipient of the Navy’s recruiting message. Alleging that he had never consented to receiving the message, that his age was nearly 40, and that Campbell had violated the TCPA by sending the message (and perhaps others like it), Gomez filed a class- action complaint in the District Court for the Central District of California in 2010. On behalf of a nationwide class of individuals who had received, but had not con- sented to receipt of, the text message, Gomez sought treble statutory damages, costs, and attorney’s fees, also an injunction against Campbell’s involvement in unsolicited messaging. App. 16–24. Prior to the agreed-upon deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. App. to Pet. for Cert. 52a–61a.1 Campbell offered to pay Gomez —————— 1 Federal Rule of Civil Procedure 68 provides, in relevant part: “(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. “(b) Unaccepted Offer. An unaccepted offer is considered with- drawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. . . . . . “(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the un- 4 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court his costs, excluding attorney’s fees, and $1,503 per mes- sage for the May 2006 text message and any other text message Gomez could show he had received, thereby satisfying his personal treble-damages claim. Id., at 53a. Campbell also proposed a stipulated injunction in which it agreed to be barred from sending text messages in viola- tion of the TCPA. The proposed injunction, however, denied liability and the allegations made in the complaint, and disclaimed the existence of grounds for the imposition of an injunction. Id., at 56a. The settlement offer did not include attorney’s fees, Campbell observed, because the TCPA does not provide for an attorney’s-fee award. Id., at 53a. Gomez did not accept the settlement offer and al- lowed Campbell’s Rule 68 submission to lapse after the time, 14 days, specified in the Rule. Campbell thereafter moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. No Article III case or contro- versy remained, Campbell urged, because its offer mooted Gomez’s individual claim by providing him with complete relief. Gomez had not moved for class certification before his claim became moot, Campbell added, so the putative class claims also became moot. The District Court denied Campbell’s motion. 805 F. Supp. 2d 923 (CD Cal. 2011).2 Gomez was not dilatory in filing his certification request, the District Court determined; consequently, the court noted, the class claims would “relat[e] back” to the date Gomez filed the complaint. Id., at 930–931. After limited discovery, Campbell moved for summary judgment on a discrete ground. The U. S. Navy enjoys the sovereign’s immunity from suit under the TCPA, Camp- —————— accepted offer, the offeree must pay the costs incurred after the offer was made.” 2 Because Campbell had already answered the complaint, the District Court construed Campbell’s motion as a request for summary judg- ment. 805 F. Supp. 2d, at 927, n. 2. Cite as: 577 U. S. ____ (2016) 5 Opinion of the Court bell argued. The District Court granted the motion. Relying on our decision in Yearsley v. W. A. Ross Constr. Co., 309 U.S. 18 (1940), the court held that, as a contrac- tor acting on the Navy’s behalf, Campbell acquired the Navy’s immunity. No. CV 10–02007DMG (CD Cal., Feb. 22, 2013), App. to Pet. for Cert. 22a–34a, 2013 WL 655237. The Court of Appeals for the Ninth Circuit reversed the summary judgment entered for Campbell. 768 F.3d 871. The appeals court disagreed with the District Court’s ruling on the immunity issue, but agreed that Gomez’s case remained live. Concerning Gomez’s individual claim, the Court of Appeals relied on its then-recent decision in Diaz v. First American Home Buyers Protection Corp., 732 F.3d 948 (2013). Diaz held that “an unaccepted Rule 68 offer that would fully satisfy a plaintiff ’s [individual] claim is insufficient to render th[at] claim moot.” Id., at 950. As to the class relief Gomez sought, the Ninth Cir- cuit held that “an unaccepted Rule 68 offer of judgment— for the full amount of the named plaintiff ’s individual claim and made before the named plaintiff files a motion for class certification—does not moot a class action.” 768 F.3d, at 875 (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091–1092 (CA9 2011)). Next, the Court of Appeals held that Campbell was not entitled to “derivative sovereign immunity” under this Court’s decision in Yearsley or on any other basis. 768 F. 3d, at 879–881. Vacating the District Court’s judg- ment, the Ninth Circuit remanded the case for further proceedings.3 We granted certiorari to resolve a disagreement among the Courts of Appeals over whether an unaccepted offer can moot a plaintiff ’s claim, thereby depriving federal courts of Article III jurisdiction. Compare Bais Yaakov v. —————— 3 The Court of Appeals stayed its mandate pending proceedings in this Court. App. to Pet. for Cert. 62a–63a. 6 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court Act, Inc., 798 F.3d 46, 52 (CA1 2015); Hooks v. Landmark Industries, Inc., 797 F.3d 309, 315 (CA5 2015); Chapman v. First Index, Inc., 796 F.3d 783, 787 (CA7 2015); Tanasi v. New Alliance Bank, 786 F.3d 195, 200 (CA2 2015); Stein v. Buccaneers Limited Partnership, 772 F.3d 698, 703 (CA11 2014); Diaz, 732 F.3d, at 954–955 (holding that an unaccepted offer does not render a plaintiff ’s claim moot), with Warren v. Sessoms & Rogers, P. A., 676 F.3d 365, 371 (CA4 2012); O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 574–575 (CA6 2009); Weiss v. Regal Collections, 385 F.3d 337, 340 (CA3 2004) (noting that an unaccepted offer can moot an individual plaintiff ’s claim). We granted review as well to resolve the federal contractor immunity question Campbell’s petition raised. 575 U. S. ___ (2015). II Article III of the Constitution limits federal-court juris- diction to “cases” and “controversies.” U. S. Const., Art. III, §2. We have interpreted this requirement to demand that “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Genesis HealthCare Corp., 569 U. S., at ___ (slip op., at 4) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990)). A case becomes moot, however, “only when it is impossible for a court to grant any effectual relief what- ever to the prevailing party.” Knox v. Service Employees, 567 U. S. ___, ___ (2012) (slip op., at 7) (internal quotation marks omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, Cite as: 577 U. S. ____ (2016) 7 Opinion of the Court the case is not moot.” Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 6) (internal quotation marks omitted). In Genesis HealthCare, the Court considered a collective action brought by Laura Symczyk, a former employee of Genesis HealthCare Corp. Symczyk sued on behalf of herself and similarly situated employees for alleged viola- tions of the Fair Labor Standards Act of 1938, 29 U.S. C. §201 et seq. In that case, as here, the defendant served the plaintiff with an offer of judgment pursuant to Rule 68 that would have satisfied the plaintiff ’s individual dam- ages claim. 569 U. S., at ___ (slip op., at 2). Also as here, the plaintiff allowed the offer to lapse by failing to respond within the time specified in the Rule. Ibid. But unlike the case Gomez mounted, Symczyk did not dispute in the lower courts that Genesis HealthCare’s offer mooted her individual claim. Id., at ___ (slip op., at 5). Because of that failure, the Genesis HealthCare majority refused to rule on the issue. Instead, the majority simply assumed, without deciding, that an offer of complete relief pursuant to Rule 68, even if unaccepted, moots a plaintiff ’s claim. Ibid. Having made that assumption, the Court proceeded to consider whether the action remained justiciable on the basis of the collective-action allegations alone. Absent a plaintiff with a live individual case, the Court concluded, the suit could not be maintained. Id., at ___ (slip op., at 6). JUSTICE KAGAN, writing in dissent, explained that she would have reached the threshold question and would have held that “an unaccepted offer of judgment cannot moot a case.” Id., at ___ (slip op., at 3). She reasoned: “When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer— like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law stu- 8 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court dent learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’ Minne- apolis & St. Louis R. Co. v. Columbus Rolling Mill, 119 U.S. 149, 151 (1886). Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’ Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, un- mooted.” Ibid. We now adopt JUSTICE KAGAN’s analysis, as has every Court of Appeals ruling on the issue post Genesis HealthCare.4 Accordingly, we hold that Gomez’s com- plaint was not effaced by Campbell’s unaccepted offer to satisfy his individual claim. As earlier recounted, see supra, at 3–4, Gomez com- menced an action against Campbell for violation of the TCPA, suing on behalf of himself and others similarly situated. Gomez sought treble statutory damages and an injunction on behalf of a nationwide class, but Campbell’s settlement offer proposed relief for Gomez alone, and it did not admit liability. App. to Pet. for Cert. 58a. Gomez rejected Campbell’s settlement terms and the offer of judgment. Under basic principles of contract law, Campbell’s set- tlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. See Genesis HealthCare, 569 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 3). Absent Gomez’s acceptance, Campbell’s settlement offer remained —————— 4 See Bais Yaakov v. Act, Inc., 798 F.3d 46, 51–52 (CA1 2015); Hooks v. Landmark Industries, Inc., 797 F.3d 309, 314–315 (CA5 2015); Chapman v. First Index, Inc., 796 F.3d 783, 786–787 (CA7 2015); Tanasi v. New Alliance Bank, 786 F.3d 195, 199–200 (CA2 2015); Stein v. Buccaneers Limited Partnership, 772 F.3d 698, 702–703 (CA11 2014); Diaz v. First American Home Buyers Corp., 732 F.3d 948, 953– 955 (CA9 2013). Cite as: 577 U. S. ____ (2016) 9 Opinion of the Court only a proposal, binding neither Campbell nor Gomez. See App. to Pet. for Cert. 59a (“Please advise whether Mr. Gomez will accept [Campbell’s] offer . . . .”). Having re- jected Campbell’s settlement bid, and given Campbell’s continuing denial of liability, Gomez gained no entitle- ment to the relief Campbell previously offered. See Eli- ason v. Henshaw, 4 Wheat. 225, 228 (1819) (“It is an un- deniable principle of the law of contracts, that an offer of a bargain by one person to another, imposes no obligation upon the former, until it is accepted by the latter . . . .”). In short, with no settlement offer still operative, the par- ties remained adverse; both retained the same stake in the litigation they had at the outset. The Federal Rule in point, Rule 68, hardly supports the argument that an unaccepted settlement offer can moot a complaint. An offer of judgment, the Rule provides, “is considered withdrawn” if not accepted within 14 days of its service. Fed. Rule Civ. Proc. 68(a), (b). The sole built-in sanction: “If the [ultimate] judgment . . . is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Rule 68(d). In urging that an offer of judgment can render a contro- versy moot, Campbell features a trio of 19th-century railroad tax cases: California v. San Pablo & Tulare R. Co., 149 U.S. 308 (1893), Little v. Bowers, 134 U.S. 547 (1890), and San Mateo County v. Southern Pacific R. Co., 116 U.S. 138 (1885). None of those decisions suggests that an unaccepted settlement offer can put a plaintiff out of court. In San Pablo, California had sued to recover state and county taxes due from a railroad. In response, the railroad had not merely offered to pay the taxes in question. It had actually deposited the full amount de- manded in a California bank in the State’s name, in accord with a California statute that “extinguished” the railroad’s tax obligations upon such payment. 149 U.S., at 313–314. San Pablo thus rested on California’s substantive law, 10 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court which required the State to accept a taxpayer’s full pay- ment of the amount in controversy. San Mateo and Little similarly involved actual payment of the taxes for which suit was brought. In all three cases, the railroad’s pay- ments had fully satisfied the asserted tax claims, and so extinguished them. San Mateo, 116 U.S., at 141–142; Little, 134 U.S., at 556.5 In contrast to the cases Campbell highlights, when the —————— 5 In addition to California v. San Pablo & Tulare R. Co., 149 U.S. 308 (1893), THE CHIEF JUSTICE maintains, two recent decisions of the Court support its position: Alvarez v. Smith, 558 U.S. 87 (2009), and Already, LLC v. Nike, Inc., 568 U. S. ___ (2013). See post, at 6–9 (dissenting opinion). The Court’s reasoning in those opinions, however, is con- sistent with our decision in this case. In Alvarez, the Court found moot claims for injunctive and declaratory relief in relation to cars and cash seized by the police. Through separate state-court proceedings, the State had “returned all the cars that it seized,” and the plaintiff- property owners had “either forfeited any relevant cash or ha[d] accepted as final the State’s return of some of it.” 558 U.S., at 89, 95–96. Alvarez thus resembles the railroad tax cases described above: The Alvarez plaintiffs had in fact received all the relief they could claim, all “underlying property disputes” had ended, id., at 89, and as the com- plaint sought “only declaratory and injunctive relief, not damages,” id., at 92, no continuing controversy remained. Already concerned a trademark owned by Nike. Already sought a declaratory judgment invalidating the trademark. The injury Already asserted was the ongoing threat that Nike would sue for trademark infringement. In response to Already’s claim, Nike filed a “Covenant Not to Sue,” in which it promised not to bring any trademark claims based on Already’s existing or similar footwear designs. 568 U. S., at ___ (slip op., at 2). The Court found this covenant sufficient to over- come the rule that “voluntary cessation” is generally inadequate to moot a claim. Id., at ___ (slip op., at 6). True, Nike’s covenant was unilateral, but it afforded Already blanket protection from future trademark litigation. Id., at ___ (slip op., at 8). The risk that under- pinned Already’s standing—the Damocles’ sword of a trademark infringement suit—thus ceased to exist given Nike’s embracive promise not to sue. In short, in both Alvarez and Already, the plaintiffs had received full redress for the injuries asserted in their complaints. Here, by contrast, Campbell’s revocable offer, far from providing Gomez the relief sought in his complaint, gave him nary a penny. Cite as: 577 U. S. ____ (2016) 11 Opinion of the Court settlement offer Campbell extended to Gomez expired, Gomez remained emptyhanded; his TCPA complaint, which Campbell opposed on the merits, stood wholly un- satisfied. Because Gomez’s individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified, see Sosna v. Iowa, 419 U.S. 393, 399 (1975), a would-be class repre- sentative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted. THE CHIEF JUSTICE’s dissent asserts that our decision transfers authority from the federal courts and “hands it to the plaintiff.” Post, at 10. Quite the contrary. The dissent’s approach would place the defendant in the driv- er’s seat. We encountered a kindred strategy in U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). The parties in Bancorp had reached a voluntary settlement while the case was pending before this Court. Id., at 20. The petitioner then sought vacatur of the Court of Appeals’ judgment, contending that it should be relieved from the adverse decision on the ground that the settlement made the dispute moot. The Court rejected this gambit. Id., at 25. Similarly here, Campbell sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept. In sum, an unaccepted settlement offer or offer of judg- ment does not moot a plaintiff ’s case, so the District Court retained jurisdiction to adjudicate Gomez’s complaint. That ruling suffices to decide this case. We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a 12 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court case in which it is not hypothetical. III The second question before us is whether Campbell’s status as a federal contractor renders it immune from suit for violating the TCPA by sending text messages to uncon- senting recipients. The United States and its agencies, it is undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their immunity. Brief for Peti- tioner 2; Brief for Respondent 43. Do federal contractors share the Government’s unqualified immunity from liabil- ity and litigation? We hold they do not. “[G]overnment contractors obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States.” Brady v. Roosevelt S. S. Co., 317 U.S. 575, 583 (1943). That immunity, however, unlike the sovereign’s, is not absolute. See id., at 580–581. Campbell asserts “derivative sover- eign immunity,” Brief for Petitioner 35, but can offer no authority for the notion that private persons performing Government work acquire the Government’s embracive immunity. When a contractor violates both federal law and the Government’s explicit instructions, as here al- leged, no “derivative immunity” shields the contractor from suit by persons adversely affected by the violation. Campbell urges that two of our decisions support its “derivative immunity” defense: Yearsley, 309 U.S. 18, and Filarsky v. Delia, 566 U. S. ___ (2012). In Yearsley, a landowner asserted a claim for damages against a private company whose work building dikes on the Missouri River pursuant to its contract with the Federal Government had washed away part of the plaintiff ’s land. We held that the contractor was not answerable to the landowner. “[T]he work which the contractor had done in the river bed,” we observed, “was all authorized and directed by the Gov- ernment of the United States” and “performed pursuant to Cite as: 577 U. S. ____ (2016) 13 Opinion of the Court the Act of Congress.” 309 U.S., at 20 (internal quotation marks omitted). Where the Government’s “authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Con- gress,” we explained, “there is no liability on the part of the contractor” who simply performed as the Government directed. Id., at 20–21.6 The Court contrasted with Years- ley cases in which a Government agent had “exceeded his authority” or the authority “was not validly conferred”; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another. Id., at 21.7 In Filarsky, we considered whether a private attorney temporarily retained by a municipal government as an investigator could claim qualified immunity in an action brought under 42 U.S. C. §1983. Finding no distinction in the common law “between public servants and private individuals engaged in public service,” we held that the investigator could assert “qualified immunity” in the lawsuit. 566 U. S., at ___, ___ (slip op., at 8, 5). Qualified immunity reduces the risk that contractors will shy away from government work. But the doctrine is bounded in a way that Campbell’s “derivative immunity” plea is not. “Qualified immunity may be overcome . . . if the defendant knew or should have known that his conduct violated a right ‘clearly established’ at the time of the episode in suit.” Id., at ___ (GINSBURG, J., concurring) (slip op., at 1) —————— 6 If there had been a taking of the plaintiff ’s property, the Court noted, “a plain and adequate remedy” would be at hand, i.e., recovery from the United States of “just compensation.” Yearsley, 309 U.S., at 21. 7 We disagree with the Court of Appeals to the extent that it de- scribed Yearsley as “establish[ing] a narrow rule regarding claims arising out of property damage caused by public works projects.” 768 F. 3d, at 879. Critical in Yearsley was not the involvement of public works, but the contractor’s performance in compliance with all federal directions. 14 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Campbell does not here contend that the TCPA’s require- ments or the Navy’s instructions failed to qualify as “clearly established.” At the pretrial stage of litigation, we construe the record in a light favorable to the party seeking to avoid summary disposition, here, Gomez. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In oppo- sition to summary judgment, Gomez presented evidence that the Navy authorized Campbell to send text messages only to individuals who had “opted in” to receive solicita- tions. App. 42–44; 768 F. 3d, at 874. A Navy representa- tive noted the importance of ensuring that the message recipient list be “kosher” (i.e., that all recipients had con- sented to receiving messages like the recruiting text), and made clear that the Navy relied on Campbell’s representa- tion that the list was in compliance. App. 43. See also ibid. (noting that Campbell itself encouraged the Navy to use only an opt-in list in order to meet national and local law requirements). In short, the current record reveals no basis for arguing that Gomez’s right to remain message- free was in doubt or that Campbell complied with the Navy’s instructions. We do not overlook that subcontractor Mindmatics, not Campbell, dispatched the Navy’s recruiting message to unconsenting recipients. But the Federal Communica- tions Commission has ruled that, under federal common- law principles of agency, there is vicarious liability for TCPA violations. In re Joint Petition Filed by Dish Net- work, LLC, 28 FCC Rcd. 6574 (2013). The Ninth Circuit deferred to that ruling, 768 F. 3d, at 878, and we have no cause to question it. Campbell’s vicarious liability for Mindmatics’ conduct, however, in no way advances Camp- bell’s contention that it acquired the sovereign’s immunity from suit based on its contract with the Navy. Cite as: 577 U. S. ____ (2016) 15 Opinion of the Court * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 577 U. S. ____ (2016) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 14–857 _________________ CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 20, 2016] JUSTICE THOMAS, concurring in the judgment.

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defend- ant’s continuing denial of liability, adversity between the parties persists. This case presents a second question. The claim in suit concerns performance of the petitioner’s contract with the Federal Govern Does the sovereign’s immunity from suit shield the petitioner, a private enterprise, as well? We hold that the petitioner’s status as a Government contractor does not entitle it to “derivative sovereign immunity,” i.e., the blanket immunity enjoyed by the 2 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court sovereign. I The Telephone Consumer Protection Act (TCPA or Act) 47 U.S. C. prohibits any person, absent the prior express consent of a telephone- call recipient, from “mak[ing] any call using any auto- matic telephone dialing system to any telephone num- ber assigned to a paging service [or] cellular telephone service.” A text message to a cellular telephone, it is undisputed, qualifies as a “call” within the compass of For damages occasioned by conduct violating the TCPA, authorizes a private right of action. A plaintiff successful in such an action may recover her “actual monetary loss” or $500 for each violation, “whichever is greater.” Damages may be trebled if “the defendant will- fully or knowingly violated” the Act. Petitioner Campbell-Ewald Company (Campbell) is a nationwide advertising and marketing communications agency. Beginning in 0, the United States Navy en- gaged Campbell to develop and execute a multimedia recruiting campaign. In 5 and 6, Campbell pro- posed to the Navy a campaign involving text messages sent to young adults, the Navy’s target audience, encour- aging them to learn more about the Navy. The Navy approved Campbell’s proposal, conditioned on sending the messages only to individuals who had “opted in” to receipt of marketing solicitations on topics that included service in the Navy. App. 42. In final form, the message read: “Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [ phone number].” Campbell then contracted with Mindmatics LLC, which Cite as: 577 U. S. (2016) 3 Opinion of the Court generated a list of cellular phone numbers geared to the Navy’s target audience—namely, cellular phone users between the ages of 18 and 24 who had consented to re- ceiving solicitations by text message. In May 6, Mindmatics transmitted the Navy’s message to over 100,000 recipients. Respondent Jose Gomez was a recipient of the Navy’s recruiting message. Alleging that he had never consented to receiving the message, that his age was nearly 40, and that Campbell had violated the TCPA by sending the message (and perhaps others like it), Gomez filed a class- action complaint in the District Court for the Central District of California in 2010. On behalf of a nationwide class of individuals who had received, but had not con- sented to receipt of, the text message, Gomez sought treble statutory damages, costs, and attorney’s fees, also an injunction against Campbell’s involvement in unsolicited messaging. App. 16–24. Prior to the agreed-upon deadline for Gomez to file a motion for class certification, Campbell proposed to settle Gomez’s individual claim and filed an offer of judgment pursuant to Federal Rule of Civil Procedure 68. App. to Pet. for Cert. a–61a.1 Campbell offered to pay Gomez —————— 1 Federal Rule of Civil Procedure 68 provides, in relevant part: “(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judg “(b) Unaccepted Offer. An unaccepted offer is considered with- drawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. “(d) Paying Costs After an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the un- 4 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court his costs, excluding attorney’s fees, and $1,503 per mes- sage for the May 6 text message and any other text message Gomez could show he had received, thereby satisfying his personal treble-damages claim. at 53a. Campbell also proposed a stipulated injunction in which it agreed to be barred from sending text messages in viola- tion of the TCPA. The proposed injunction, however, denied liability and the allegations made in the complaint, and disclaimed the existence of grounds for the imposition of an injunction. at 56a. The settlement offer did not include attorney’s fees, Campbell observed, because the TCPA does not provide for an attorney’s-fee award. at 53a. Gomez did not accept the settlement offer and al- lowed Campbell’s Rule 68 submission to lapse after the time, 14 days, specified in the Rule. Campbell thereafter moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. No Article III case or contro- versy remained, Campbell urged, because its offer mooted Gomez’s individual claim by providing him with complete relief. Gomez had not moved for class certification before his claim became moot, Campbell added, so the putative class claims also became moot. The District Court denied Campbell’s motion.2 Gomez was not dilatory in filing his certification request, the District Court determined; consequently, the court noted, the class claims would “relat[e] back” to the date Gomez filed the complaint. at 930–931. After limited discovery, Campbell moved for summary judgment on a discrete ground. The U. S. Navy enjoys the sovereign’s immunity from suit under the TCPA, Camp- —————— accepted offer, the offeree must pay the costs incurred after the offer was made.” 2 Because Campbell had already answered the complaint, the District Court construed Campbell’s motion as a request for summary judg- n. 2. Cite as: 577 U. S. (2016) 5 Opinion of the Court bell argued. The District Court granted the motion. Relying on our decision in the court held that, as a contrac- tor acting on the Navy’s behalf, Campbell acquired the Navy’s immunity. No. CV 10–07DMG (CD Cal., Feb. 22, 2013), App. to Pet. for Cert. 22a–34a, The Court of Appeals for the Ninth Circuit reversed the summary judgment entered for Campbell. The appeals court disagreed with the District Court’s on the immunity issue, but agreed that Gomez’s case remained live. Concerning Gomez’s individual claim, the Court of Appeals relied on its then-recent decision in v. First American Home Buyers Protection Corp., 732 F.3d 948 (2013). held that “an unaccepted Rule 68 offer that would fully satisfy a plaintiff ’s [individual] claim is insufficient to render th[at] claim moot.” at 950. As to the class relief Gomez sought, the Ninth Cir- cuit held that “an unaccepted Rule 68 offer of judgment— for the full amount of the named plaintiff ’s individual claim and made before the named plaintiff files a motion for class certification—does not moot a class action.” 768 F.3d, at 875 ). Next, the Court of Appeals held that Campbell was not entitled to “derivative sovereign immunity” under this Court’s decision in or on any other basis. 768 F. 3d, at 879–881. Vacating the District Court’s judg- ment, the Ninth Circuit remanded the case for further proceedings.3 We granted certiorari to resolve a disagreement among the Courts of Appeals over whether an unaccepted offer can moot a plaintiff ’s claim, thereby depriving federal courts of Article III jurisdiction. Compare Bais Yaakov v. —————— 3 The Court of Appeals stayed its mandate pending proceedings in this Court. App. to Pet. for Cert. 62a–63a. 6 CAMPBELL-EWALD ; ; Chapman v. First Index, Inc., ; Tanasi v. New Alliance Bank, ; 703 ; –955 (holding that an unaccepted offer does not render a plaintiff ’s claim moot), with Warren v. Sessoms & Rogers, P. A., 676 F.3d 365, 371 (CA4 2012); (CA6 9); (CA3 4) (noting that an unaccepted offer can moot an individual plaintiff ’s claim). We granted review as well to resolve the federal contractor immunity question Campbell’s petition raised. 575 U. S. II Article III of the Constitution limits federal-court juris- diction to “cases” and “controversies.” U. S. Const., Art. III, We have interpreted this requirement to demand that “an actual controversy be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 0 U.S. 43, 67 (1997) ). “If an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during litigation, the action can no longer proceed and must be dismissed as moot.” Genesis HealthCare Corp., 569 U. S., at (slip op., at 4) (quoting 477–478 (1990)). A case becomes moot, however, “only when it is impossible for a court to grant any effectual relief what- ever to the prevailing party.” Knox v. Service Employees, 567 U. S. (2012) (slip op., at 7) (internal quotation marks omitted). “As long as the parties have a concrete interest, however small, in the outcome of the litigation, Cite as: 577 U. S. (2016) 7 Opinion of the Court the case is not moot.” Chafin v. Chafin, 568 U. S. (2013) (slip op., at 6) (internal quotation marks omitted). In Genesis HealthCare, the Court considered a collective action brought by Laura Symczyk, a former employee of Genesis HealthCare Corp. Symczyk sued on behalf of herself and similarly situated employees for alleged viola- tions of the Fair Labor Standards Act of 1938, 29 U.S. C. et seq. In that case, as here, the defendant served the plaintiff with an offer of judgment pursuant to Rule 68 that would have satisfied the plaintiff ’s individual dam- ages claim. 569 U. S., at (slip op., at 2). Also as here, the plaintiff allowed the offer to lapse by failing to respond within the time specified in the Rule. But unlike the case Gomez mounted, Symczyk did not dispute in the lower courts that Genesis HealthCare’s offer mooted her individual claim. at (slip op., at 5). Because of that failure, the Genesis HealthCare majority refused to rule on the issue. Instead, the majority simply assumed, without deciding, that an offer of complete relief pursuant to Rule 68, even if unaccepted, moots a plaintiff ’s claim. Having made that assumption, the Court proceeded to consider whether the action remained justiciable on the basis of the collective-action allegations alone. Absent a plaintiff with a live individual case, the Court concluded, the suit could not be maintained. at (slip op., at 6). JUSTICE KAGAN, writing in dissent, explained that she would have reached the threshold question and would have held that “an unaccepted offer of judgment cannot moot a case.” at (slip op., at 3). She reasoned: “When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was before. And so too does the court’s ability to grant her relief. An unaccepted settlement offer— like any unaccepted contract offer—is a legal nullity, with no operative effect. As every first-year law stu- 8 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court dent learns, the recipient’s rejection of an offer ‘leaves the matter as if no offer had ever been made.’ Minne- apolis & St. Louis R. Nothing in Rule 68 alters that basic principle; to the contrary, that rule specifies that ‘[a]n unaccepted offer is considered withdrawn.’ Fed. Rule Civ. Proc. 68(b). So assuming the case was live before—because the plaintiff had a stake and the court could grant relief—the litigation carries on, un- mooted.” We now adopt JUSTICE KAGAN’s analysis, as has every Court of Appeals on the issue post Genesis HealthCare.4 Accordingly, we hold that Gomez’s com- plaint was not effaced by Campbell’s unaccepted offer to satisfy his individual claim. As earlier recounted, see at 3–4, Gomez com- menced an action against Campbell for violation of the TCPA, suing on behalf of himself and others similarly situated. Gomez sought treble statutory damages and an injunction on behalf of a nationwide class, but Campbell’s settlement offer proposed relief for Gomez alone, and it did not admit liability. App. to Pet. for Cert. 58a. Gomez rejected Campbell’s settlement terms and the offer of judg Under basic principles of contract law, Campbell’s set- tlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy. See Genesis HealthCare, 569 U. S., at (KAGAN, J., dissenting) (slip op., at 3). Absent Gomez’s acceptance, Campbell’s settlement offer remained —————— 4 See Bais 51– ; Hooks v. Landmark Industries, Inc., 314– ; 786– ; 199– ; Stein v. Buccaneers Limited Partnership, 702–703 ; v. First American Home Buyers Corp., 953– 955 (CA9 2013). Cite as: 577 U. S. (2016) 9 Opinion of the Court only a proposal, binding neither Campbell nor Gomez. See App. to Pet. for Cert. 59a (“Please advise whether Mr. Gomez will accept [Campbell’s] offer”). Having re- jected Campbell’s settlement bid, and given Campbell’s continuing denial of liability, Gomez gained no entitle- ment to the relief Campbell previously offered. See Eli- (“It is an un- deniable principle of the law of contracts, that an offer of a bargain by one person to another, imposes no obligation upon the former, until it is accepted by the latter”). In short, with no settlement offer still operative, the par- ties remained adverse; both retained the same stake in the litigation they had at the outset. The Federal Rule in point, Rule 68, hardly supports the argument that an unaccepted settlement offer can moot a complaint. An offer of judgment, the Rule provides, “is considered withdrawn” if not accepted within 14 days of its service. Fed. Rule Civ. Proc. 68(a), (b). The sole built-in sanction: “If the [ultimate] judgment is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Rule 68(d). In urging that an offer of judgment can render a contro- versy moot, Campbell features a trio of 19th-century railroad tax cases: (1890), and San None of those decisions suggests that an unaccepted settlement offer can put a plaintiff out of court. In San Pablo, California had sued to recover state and county taxes due from a railroad. In response, the railroad had not merely offered to pay the taxes in question. It had actually deposited the full amount de- manded in a California bank in the State’s name, in accord with a California statute that “extinguished” the railroad’s tax obligations upon such pay –314. San Pablo thus rested on California’s substantive law, 10 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court which required the State to accept a taxpayer’s full pay- ment of the amount in controversy. San and similarly involved actual payment of the taxes for which suit was brought. In all three cases, the railroad’s pay- ments had fully satisfied the asserted tax claims, and so extinguished them. San –142;5 In contrast to the cases Campbell highlights, when the —————— 5 In addition to THE CHIEF JUSTICE maintains, two recent decisions of the Court support its position: (9), and Already, LLC v. Nike, Inc., 568 U. S. (2013). See post, at 6–9 (dissenting opinion). The Court’s reasoning in those opinions, however, is con- sistent with our decision in this case. In Alvarez, the Court found moot claims for injunctive and declaratory relief in relation to cars and cash seized by the police. Through separate state-court proceedings, the State had “returned all the cars that it seized,” and the plaintiff- property owners had “either forfeited any relevant cash or ha[d] accepted as final the State’s return of some of it.” 95–96. Alvarez thus resembles the railroad tax cases described above: The Alvarez plaintiffs had in fact received all the relief they could claim, all “underlying property disputes” had ended, and as the com- plaint sought “only declaratory and injunctive relief, not damages,” at 92, no continuing controversy remained. Already concerned a trademark owned by Nike. Already sought a declaratory judgment invalidating the trademark. The injury Already asserted was the ongoing threat that Nike would sue for trademark infringe In response to Already’s claim, Nike filed a “Covenant Not to Sue,” in which it promised not to bring any trademark claims based on Already’s existing or similar footwear designs. 568 U. S., at (slip op., at 2). The Court found this covenant sufficient to over- come the rule that “voluntary cessation” is generally inadequate to moot a claim. at (slip op., at 6). True, Nike’s covenant was unilateral, but it afforded Already blanket protection from future trademark litigation. at (slip op., at 8). The risk that under- pinned Already’s standing—the Damocles’ sword of a trademark infringement suit—thus ceased to exist given Nike’s embracive promise not to sue. In short, in both Alvarez and Already, the plaintiffs had received full redress for the injuries asserted in their complaints. Here, by contrast, Campbell’s revocable offer, far from providing Gomez the relief sought in his complaint, gave him nary a penny. Cite as: 577 U. S. (2016) 11 Opinion of the Court settlement offer Campbell extended to Gomez expired, Gomez remained emptyhanded; his TCPA complaint, which Campbell opposed on the merits, stood wholly un- satisfied. Because Gomez’s individual claim was not made moot by the expired settlement offer, that claim would retain vitality during the time involved in determining whether the case could proceed on behalf of a class. While a class lacks independent status until certified, see Sosna v. Iowa, a would-be class repre- sentative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted. THE CHIEF JUSTICE’s dissent asserts that our decision transfers authority from the federal courts and “hands it to the plaintiff.” Post, at 10. Quite the contrary. The dissent’s approach would place the defendant in the driv- er’s seat. We encountered a kindred strategy in U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994). The parties in Bancorp had reached a voluntary settlement while the case was pending before this Court. The petitioner then sought vacatur of the Court of Appeals’ judgment, contending that it should be relieved from the adverse decision on the ground that the settlement made the dispute moot. The Court rejected this gambit. Similarly here, Campbell sought to avoid a potential adverse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept. In sum, an unaccepted settlement offer or offer of judg- ment does not moot a plaintiff ’s case, so the District Court retained jurisdiction to adjudicate Gomez’s complaint. That suffices to decide this case. We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff ’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a 12 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court case in which it is not hypothetical. III The second question before us is whether Campbell’s status as a federal contractor renders it immune from suit for violating the TCPA by sending text messages to uncon- senting recipients. The United States and its agencies, it is undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their immunity. Brief for Peti- tioner 2; Brief for Respondent 43. Do federal contractors share the Government’s unqualified immunity from liabil- ity and litigation? We hold they do not. “[G]overnment contractors obtain certain immunity in connection with work which they do pursuant to their contractual undertakings with the United States.” Brady v. Roosevelt S. S. Co., That immunity, however, unlike the sovereign’s, is not absolute. See at 580–581. Campbell asserts “derivative sover- eign immunity,” Brief for Petitioner 35, but can offer no authority for the notion that private persons performing Government work acquire the Government’s embracive immunity. When a contractor violates both federal law and the Government’s explicit instructions, as here al- leged, no “derivative immunity” shields the contractor from suit by persons adversely affected by the violation. Campbell urges that two of our decisions support its “derivative immunity” defense: and Filarsky v. Delia, 566 U. S. (2012). In a landowner asserted a claim for damages against a private company whose work building dikes on the Missouri River pursuant to its contract with the Federal Government had washed away part of the plaintiff ’s land. We held that the contractor was not answerable to the landowner. “[T]he work which the contractor had done in the river bed,” we observed, “was all authorized and directed by the Gov- ernment of the United States” and “performed pursuant to Cite as: 577 U. S. (2016) 13 Opinion of the Court the Act of Congress.” 309 U.S., (internal quotation marks omitted). Where the Government’s “authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Con- gress,” we explained, “there is no liability on the part of the contractor” who simply performed as the Government directed. –21.6 The Court contrasted with Years- ley cases in which a Government agent had “exceeded his authority” or the authority “was not validly conferred”; in those circumstances, the Court said, the agent could be held liable for conduct causing injury to another. at 21.7 In Filarsky, we considered whether a private attorney temporarily retained by a municipal government as an investigator could claim qualified immunity in an action brought under 42 U.S. C. Finding no distinction in the common law “between public servants and private individuals engaged in public service,” we held that the investigator could assert “qualified immunity” in the lawsuit. 566 U. S., at (slip op., at 8, 5). Qualified immunity reduces the risk that contractors will shy away from government work. But the doctrine is bounded in a way that Campbell’s “derivative immunity” plea is not. “Qualified immunity may be overcome if the defendant knew or should have known that his conduct violated a right ‘clearly established’ at the time of the episode in suit.” at (GINSBURG, J., concurring) (slip op., at 1) —————— 6 If there had been a taking of the plaintiff ’s property, the Court noted, “a plain and adequate remedy” would be at hand, i.e., recovery from the United States of “just compensation.” 7 We disagree with the Court of Appeals to the extent that it de- scribed as “establish[ing] a narrow rule regarding claims arising out of property damage caused by public works projects.” 768 F. 3d, at 879. Critical in was not the involvement of public works, but the contractor’s performance in compliance with all federal directions. 14 CAMPBELL-EWALD CO. v. GOMEZ Opinion of the Court ). Campbell does not here contend that the TCPA’s require- ments or the Navy’s instructions failed to qualify as “clearly established.” At the pretrial stage of litigation, we construe the record in a light favorable to the party seeking to avoid summary disposition, here, Gomez. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., In oppo- sition to summary judgment, Gomez presented evidence that the Navy authorized Campbell to send text messages only to individuals who had “opted in” to receive solicita- tions. App. 42–44; 768 F. 3d, at A Navy representa- tive noted the importance of ensuring that the message recipient list be “kosher” (i.e., that all recipients had con- sented to receiving messages like the recruiting text), and made clear that the Navy relied on Campbell’s representa- tion that the list was in compliance. App. 43. See also (noting that Campbell itself encouraged the Navy to use only an opt-in list in order to meet national and local law requirements). In short, the current record reveals no basis for arguing that Gomez’s right to remain message- free was in doubt or that Campbell complied with the Navy’s instructions. We do not overlook that subcontractor Mindmatics, not Campbell, dispatched the Navy’s recruiting message to unconsenting recipients. But the Federal Communica- tions Commission has ruled that, under federal common- law principles of agency, there is vicarious liability for TCPA violations. In re Joint Petition Filed by Dish Net- work, LLC, 28 FCC Rcd. 6574 (2013). The Ninth Circuit deferred to that and we have no cause to question it. Campbell’s vicarious liability for Mindmatics’ conduct, however, in no way advances Camp- bell’s contention that it acquired the sovereign’s immunity from suit based on its contract with the Navy. Cite as: 577 U. S. (2016) 15 Opinion of the Court * * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 577 U. S. (2016) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 14–857 CAMPBELL-EWALD COMPANY, PETITIONER v. JOSE GOMEZ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 20, 2016] JUSTICE THOMAS, concurring in the judg

Justice Thomas

concurring

Campbell-Ewald v. Gomez

2016-02-09

https://www.courtlistener.com/opinion/3177215/campbell-ewald-v-gomez/

https://www.courtlistener.com/api/rest/v3/clusters/3177215/

The Court correctly concludes that an offer of complete relief on a claim does not render that claim moot. But, in my view, the Court does not advance a sound basis for this conclusion. The Court rests its conclusion on modern contract law principles and a recent dissent concerning Federal Rule of Civil Procedure 68. See ante, at 6–9. I would rest instead on the common-law history of tenders. That history—which led to Rule 68—demonstrates that a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related. I therefore concur only in the judgment. I The text of Article III’s case-or-controversy requirement, that requirement’s drafting history, and our precedents do not appear to provide sufficiently specific principles to resolve this case. When faced with such uncertainty, it seems particularly important for us to look to how courts traditionally have viewed a defendant’s offer to pay the plaintiff’s alleged damages. That history—which stretches from the common law directly to Rule 68 and modern settlement offers—reveals one unbroken practice that should resolve this case: A defendant’s offer to pay the plaintiff—without more—would not have deprived a court 2 CAMPBELL-EWALD CO. v. GOMEZ THOMAS, J., concurring in judgment of jurisdiction. Campbell-Ewald’s offers thus do not bar federal courts from continuing to hear this case. A Modern settlement procedure has its origins in the law of tenders, as refined in the 18th and 19th centuries. As with much of the early common law, the law of tenders had many rigid formalities. These formalities make clear that, around the time of the framing, a mere offer of relief was insufficient to deprive a court of jurisdiction. At common law, a prospective defendant could prevent a case from proceeding, but he needed to provide substan- tially more than a bare offer. A “mere proposal or proposi- tion” to pay a claim was inadequate to end a case. A. Hunt, A Treatise on the Law of Tender, and Bringing Money Into Court §§1–2, 3–4 (1903) (Hunt) (citing cases from the 1800’s). Nor would a defendant’s “readiness and an ability to pay the money” suffice to end a case. Holmes v. Holmes, 12 Barb. 137, 144 (N. Y. 1851). Rather, a pro- spective defendant needed to provide a “tender”—an offer to pay the entire claim before a suit was filed, accompa- nied by “actually produc[ing]” the sum “at the time of tender” in an “unconditional” manner. M. Bacon, A New Abridgment of the Law, 314–315, 321 (1856) (citing cases from the early 1800’s). Furthermore, in state and federal courts, a tender of the amount due was deemed “an admission of a liability” on the cause of action to which the tender related, so any would-be defendant who tried to deny liability could not effectuate a tender. Hunt §400, at 448; see Cottier v. Stimpson, 18 F. 689, 691 (Ore. 1883) (explaining that a tender constitutes “an admission of the cause of action”); The Rossend Castle Dillenback v. The Rossend Castle, 30 F. 462, 464 (SDNY 1887) (same). As one treatise ex- plained, “[a] tender must be of a specific sum which the tenderor admits to be due”—“[t]here must be no denial of Cite as: 577 U. S. ____ (2016) 3 THOMAS, J., concurring in judgment the debt.” Hunt §242, at 253 (emphasis added). The tender had to offer and actually deliver complete relief. See id., §2, at 4; Sheredine v. Gaul, 2 Dall. 190, 191 (Pa. 1792) (defendant must “brin[g] the money into Court”). And an offer to pay less than what was demanded was not a valid tender. See, e.g., Elderkin v. Fellows, 60 Wis. 339, 340–341, 19 N.W. 101, 102 (1884). Even when a potential defendant properly effectuated a tender, the case would not necessarily end. At common law, a plaintiff was entitled to “deny that [the tender was] sufficient to satisfy his demand” and accordingly “go on to trial.” Raiford v. Governor, 29 Ala. 382, 384 (1856); see also Hunt §511, at 595.* This history demonstrates that, at common law, a de- fendant or prospective defendant had to furnish far more than a mere offer of settlement to end a case. This history also demonstrates that courts at common law would not have understood a mere offer to strip them of jurisdiction. B Although 19th-century state statutes expanded the common-law-tender regime, the law retained its essential features. See Bone, “To Encourage Settlement”: Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 Nw. U. L. Rev. 1561, 1585 (2008) (Bone). These changes, for example, allowed defendants to offer a tender “during the pendency of an action,” as well as before it commenced. Taylor v. Brooklyn Elevated —————— * Nevertheless, the common law strongly encouraged a plaintiff to accept a tender by penalizing plaintiffs who improperly rejected them. A plaintiff would not be able to recover any damages that accrued after the tender, nor could he receive the costs of the suit if the jury returned a verdict for either the amount offered or less. See Hunt §§363–364, at 403–404. This rule remains today. See Fed. Rule Civ. Proc. 68(d) (taxing costs to plaintiff who fails to recover more than the offer of judgment). 4 CAMPBELL-EWALD CO. v. GOMEZ THOMAS, J., concurring in judgment R. Co., 119 N.Y. 561, 564, 23 N.E. 1106, 1107 (1890); cf. Colby v. Reed, 99 U.S. 560, 566 (1879) (at common law, generally no “right of tender after action brought”). Stat- utes also expanded the right of tender to cover types of actions in which damages were not certain. Compare Dedekam v. Vose, 7 F. Cas. 337, 338 (SDNY 1853) (“[T]ender could not be maintained, according to the strict principles of the common law” in cases where damages were not easily ascertainable), with Patrick v. Illawaco Oyster Co., 189 Wash. 152, 155, 63 P.2d 520, 521 (1937) (state statute “extend[ed] the common-law rule” to tort actions). Nevertheless, state statutes generally retained the core of the common-law tender rules. Most critically for this case, a mere offer remained insufficient to end a lawsuit. See, e.g., Kilts v. Seeber, 10 How. Pr. 270, 271 (N. Y. 1854) (under New York law, a mere offer was insufficient to preclude litigation). Like the common-law tender rules, state statutes recognized that plaintiffs could continue to pursue litigation by rejecting an offer. See Bone 1586. C The offer-of-judgment procedure in Rule 68 was modeled after a provision in the New York Field Code that was enacted in the mid-19th century. See id., at 1583–1584. That code abrogated many of the common-law formalities governing civil procedure. Among its innovations, the code allowed defendants in any cause of action to make an offer in writing to the plaintiff proposing to accept judg- ment against the defendant for a specified sum. See The Code of Procedure of the State of New York From 1848 to 1871: Comprising the Act as Originally Enacted and the Various Amendments Made Thereto, to the Close of the Session of 1870 §385, p. 274 (1870). The plaintiff could accept the offer, which would end the litigation, or reject the offer, in which case the offer was considered with- Cite as: 577 U. S. ____ (2016) 5 THOMAS, J., concurring in judgment drawn without any admission of liability by the defendant. Ibid. In 1938, Rule 68 was adopted as part of the Federal Rules of Civil Procedure, and has subsisted throughout the years without material changes. See Bone 1564. As it did in 1938, Rule 68 now authorizes “a party defending against a claim” to “serve on an opposing party an offer to allow judgment on specified terms.” Rule 68(a). Rule 68 also provides a plaintiff the option to accept or reject an offer. If the plaintiff accepts the offer, the “clerk must then enter judgment,” but “[a]n unaccepted offer is consid- ered withdrawn.” Rules 68(a)–(b). Withdrawn offers (unlike common-law tenders) cannot be used in court as an admission against defendants. Rule 68(b). D In light of the history discussed above, a rejected offer does not end the case. And this consistent historical prac- tice demonstrates why Campbell-Ewald’s offers do not divest a federal court of jurisdiction to entertain Gomez’s suit. Campbell-Ewald made two settlement offers after Gomez sued—one filed with the District Court under Rule 68 and one freestanding settlement offer. But with nei- ther of these offers did the company make payment; it only declared its intent to pay. Because Campbell-Ewald only offered to pay Gomez’s claim but took no further steps, the court was not deprived of jurisdiction. II Although the Court reaches the right result, I cannot adopt its reasoning. Building on the dissent in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___ (2013), the Court relies on principles of contract law that an unac- cepted offer is a legal nullity. But the question here is not whether Campbell-Ewald’s offer formed an enforceable contract. The question is whether its continuing offer of 6 CAMPBELL-EWALD CO. v. GOMEZ THOMAS, J., concurring in judgment complete relief eliminated the case or controversy required by Article III. By looking only to contract law and one recent Rule 68 opinion, the Court fails to confront this broader issue. Instead, I believe that we must resolve the meaning of “case” and “controversy” in Article III by look- ing to “the traditional, fundamental limitations upon the powers of common-law courts” because “cases” and “con- troversies” “have virtually no meaning except by reference to that tradition.” Honig v. Doe, 484 U.S. 305, 340 (1988) (SCALIA, J., dissenting). THE CHIEF JUSTICE’s dissent argues that examining whether the requirements of common-law tenders have been met does not answer “whether there is a case or controversy for purposes of Article III.” Post, at 9, n. 3. As explained above, however, courts have historically refused to dismiss cases when an offer did not conform to the strict tender rules. The logical implications of THE CHIEF JUSTICE’s reasoning are that the common-law-tender rules conflict with Article III and that the Constitution bars Article III courts from following those principles. But see Colby, supra, at 566 (stating that, to stop litigation, a party “must adopt the measure prescribed by the common law, except in jurisdictions where a different mode of proceeding is prescribed by statute”). That reasoning, therefore, calls into question the history and tradition that the case-or-controversy requirement embodies. THE CHIEF JUSTICE also contends that our precedents “plainly establish that an admission of liability is not required for a case to be moot under Article III.” Post, at 10, n. 3. But we need not decide today whether compli- ance with every common-law formality would be necessary to end a case. The dispositive point is that state and federal courts have not considered a mere offer, without more, sufficient to moot the case. None of the cases cited by THE CHIEF JUSTICE hold that a retrospective claim for money damages can become moot based on a mere offer. Cite as: 577 U. S. ____ (2016) 7 THOMAS, J., concurring in judgment California v. San Pablo & Tulare R. Co., 149 U.S. 308 (1893), is inapposite because that decision involved a fully tendered offer that extinguished the tax debt under Cali- fornia law. Id., at 313–314. Alvarez v. Smith, 558 U.S. 87 (2009), and Already, LLC v. Nike, Inc., 568 U. S. ___ (2013), are also not on point. Both involved claims for injunctive or declaratory relief that became moot when the defendants ceased causing actual or threatened injury. But whether a claim for prospective relief is moot is differ- ent from the issue in this case, which involves claims for damages to remedy past harms. See, e.g., Parents In- volved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701, 720 (2007) (plaintiff “sought damages in her complaint, which is sufficient to preserve our ability to consider the question”); Alvarez, supra, at 92 (suggesting that a “continuing controversy over damages” would mean that the case was not moot). As explained above, I would follow history and tradition in construing Article III, and so I find that Campbell- Ewald’s mere offers did not deprive the District Court of jurisdiction. Accordingly, I concur in the judgment only. Cite as: 577 U. S. ____ (2016) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 14–857 _________________ CAMPBELL-EWALD COMPANY, PETITIONER v.

The Court correctly concludes that an offer of complete relief on a claim does not render that claim moot. But, in my view, the Court does not advance a sound basis for this conclusion. The Court rests its conclusion on modern contract law principles and a recent dissent concerning Federal Rule of Civil Procedure 68. See ante, at 6–9. I would rest instead on the common-law history of tenders. That history—which led to Rule 68—demonstrates that a mere offer of the sum owed is insufficient to eliminate a court’s jurisdiction to decide the case to which the offer related. I therefore concur only in the judgment. I The text of Article III’s case-or-controversy requirement, that requirement’s drafting history, and our precedents do not appear to provide sufficiently specific principles to resolve this case. When faced with such uncertainty, it seems particularly important for us to look to how courts traditionally have viewed a defendant’s offer to pay the plaintiff’s alleged damages. That history—which stretches from the common law directly to Rule 68 and modern settlement offers—reveals one unbroken practice that should resolve this case: A defendant’s offer to pay the plaintiff—without more—would not have deprived a court 2 CAMPBELL-EWALD CO. v. GOMEZ THOMAS, J., concurring in judgment of jurisdiction. Campbell-Ewald’s offers thus do not bar federal courts from continuing to hear this case. A Modern settlement procedure has its origins in the law of tenders, as refined in the 18th and 19th centuries. As with much of the early common law, the law of tenders had many rigid formalities. These formalities make clear that, around the time of the framing, a mere offer of relief was insufficient to deprive a court of jurisdiction. At common law, a prospective defendant could prevent a case from proceeding, but he needed to provide substan- tially more than a bare offer. A “mere proposal or proposi- tion” to pay a claim was inadequate to end a case. A. Hunt, A Treatise on the Law of Tender, and Bringing Money Into Court 3–4 (1903) (Hunt) (citing cases from the 1800’s). Nor would a defendant’s “readiness and an ability to pay the money” suffice to end a case. Holmes v. Rather, a pro- spective defendant needed to provide a “tender”—an offer to pay the entire claim before a suit was filed, accompa- nied by “actually produc[ing]” the sum “at the time of tender” in an “unconditional” manner. M. Bacon, A New Abridgment of the Law, 314–315, 321 (citing cases from the early 1800’s). Furthermore, in state and federal courts, a tender of the amount due was deemed “an admission of a liability” on the cause of action to which the tender related, so any would-be defendant who tried to deny liability could not effectuate a tender. Hunt at 448; see Cottier v. Stimpson, (explaining that a tender constitutes “an admission of the cause of action”); The Rossend Castle Dillenback v. The Rossend Castle, 30 F. 462, 464 (SDNY 1887) (same). As one treatise ex- plained, “[a] tender must be of a specific sum which the tenderor admits to be due”—“[t]here must be no denial of Cite as: 577 U. S. (2016) 3 THOMAS, J., concurring in judgment the debt.” Hunt at 253 (emphasis added). The tender had to offer and actually deliver complete relief. See at 4; (Pa. 1792) (defendant must “brin[g] the money into Court”). And an offer to pay less than what was demanded was not a valid tender. See, e.g., –341, Even when a potential defendant properly effectuated a tender, the case would not necessarily end. At common law, a plaintiff was entitled to “deny that [the tender was] sufficient to satisfy his demand” and accordingly “go on to trial.” ; see also Hunt at 595.* This history demonstrates that, at common law, a de- fendant or prospective defendant had to furnish far more than a mere offer of settlement to end a case. This history also demonstrates that courts at common law would not have understood a mere offer to strip them of jurisdiction. B Although 19th-century state statutes expanded the common-law-tender regime, the law retained its essential features. See Bone, “To Encourage Settlement”: Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, Nw. U. L. Rev. 1561, (Bone). These changes, for example, allowed defendants to offer a tender “during the pendency of an action,” as well as before it commenced. Taylor v. Brooklyn Elevated —————— * Nevertheless, the common law strongly encouraged a plaintiff to accept a tender by penalizing plaintiffs who improperly rejected them. A plaintiff would not be able to recover any damages that accrued after the tender, nor could he receive the costs of the suit if the jury returned a verdict for either the amount offered or less. See Hunt at 403–404. This rule remains today. See Fed. Rule Civ. Proc. 68(d) (taxing costs to plaintiff who fails to recover more than the offer of judgment). 4 CAMPBELL-EWALD ; cf. (at common law, generally no “right of tender after action brought”). Stat- utes also expanded the right of tender to cover types of actions in which damages were not certain. Compare (“[T]ender could not be maintained, according to the strict principles of the common law” in cases where damages were not easily ascertainable), with (state statute “extend[ed] the common-law rule” to tort actions). Nevertheless, state statutes generally retained the core of the common-law tender rules. Most critically for this case, a mere offer remained insufficient to end a lawsuit. See, e.g., (under New York law, a mere offer was insufficient to preclude litigation). Like the common-law tender rules, state statutes recognized that plaintiffs could continue to pursue litigation by rejecting an offer. See Bone 1586. C The offer-of-judgment procedure in Rule 68 was modeled after a provision in the New York Field Code that was enacted in the mid-19th century. See at 1583–1584. That code abrogated many of the common-law formalities governing civil procedure. Among its innovations, the code allowed defendants in any cause of action to make an offer in writing to the plaintiff proposing to accept judg- ment against the defendant for a specified sum. See The Code of Procedure of the State of New York From 1848 to 1871: Comprising the Act as Originally Enacted and the Various Amendments Made Thereto, to the Close of the Session of 1870 p. 274 (1870). The plaintiff could accept the offer, which would end the litigation, or reject the offer, in which case the offer was considered with- Cite as: 577 U. S. (2016) 5 THOMAS, J., concurring in judgment drawn without any admission of liability by the defendant. In 1938, Rule 68 was adopted as part of the Federal Rules of Civil Procedure, and has subsisted throughout the years without material changes. See Bone 1. As it did in 1938, Rule 68 now authorizes “a party defending against a claim” to “serve on an opposing party an offer to allow judgment on specified terms.” Rule 68(a). Rule 68 also provides a plaintiff the option to accept or reject an offer. If the plaintiff accepts the offer, the “clerk must then enter judgment,” but “[a]n unaccepted offer is consid- ered withdrawn.” Rules 68(a)–(b). Withdrawn offers (unlike common-law tenders) cannot be used in court as an admission against defendants. Rule 68(b). D In light of the history discussed above, a rejected offer does not end the case. And this consistent historical prac- tice demonstrates why Campbell-Ewald’s offers do not divest a federal court of jurisdiction to entertain Gomez’s suit. Campbell-Ewald made two settlement offers after Gomez sued—one filed with the District Court under Rule 68 and one freestanding settlement offer. But with nei- ther of these offers did the company make payment; it only declared its intent to pay. Because Campbell-Ewald only offered to pay Gomez’s claim but took no further steps, the court was not deprived of jurisdiction. II Although the Court reaches the right result, I cannot adopt its reasoning. Building on the dissent in Genesis HealthCare Corp. v. Symczyk, 569 U. S. (2013), the Court relies on principles of contract law that an unac- cepted offer is a legal nullity. But the question here is not whether Campbell-Ewald’s offer formed an enforceable contract. The question is whether its continuing offer of 6 CAMPBELL-EWALD CO. v. GOMEZ THOMAS, J., concurring in judgment complete relief eliminated the case or controversy required by Article III. By looking only to contract law and one recent Rule 68 opinion, the Court fails to confront this broader issue. Instead, I believe that we must resolve the meaning of “case” and “controversy” in Article III by look- ing to “the traditional, fundamental limitations upon the powers of common-law courts” because “cases” and “con- troversies” “have virtually no meaning except by reference to that tradition.” (SCALIA, J., dissenting). THE CHIEF JUSTICE’s dissent argues that examining whether the requirements of common-law tenders have been met does not answer “whether there is a case or controversy for purposes of Article III.” Post, at 9, n. 3. As explained above, however, courts have historically refused to dismiss cases when an offer did not conform to the strict tender rules. The logical implications of THE CHIEF JUSTICE’s reasoning are that the common-law-tender rules conflict with Article III and that the Constitution bars Article III courts from following those principles. But see at (stating that, to stop litigation, a party “must adopt the measure prescribed by the common law, except in jurisdictions where a different mode of proceeding is prescribed by statute”). That reasoning, therefore, calls into question the history and tradition that the case-or-controversy requirement embodies. THE CHIEF JUSTICE also contends that our precedents “plainly establish that an admission of liability is not required for a case to be moot under Article III.” Post, at 10, n. 3. But we need not decide today whether compli- ance with every common-law formality would be necessary to end a case. The dispositive point is that state and federal courts have not considered a mere offer, without more, sufficient to moot the case. None of the cases cited by THE CHIEF JUSTICE hold that a retrospective claim for money damages can become moot based on a mere offer. Cite as: 577 U. S. (2016) 7 THOMAS, J., concurring in judgment (1893), is inapposite because that decision involved a fully tendered offer that extinguished the tax debt under Cali- fornia law. at 313–314. (2009), and Already, LLC v. Nike, Inc., 568 U. S. (2013), are also not on point. Both involved claims for injunctive or declaratory relief that became moot when the defendants ceased causing actual or threatened injury. But whether a claim for prospective relief is moot is differ- ent from the issue in this case, which involves claims for damages to remedy past harms. See, e.g., Parents In- volved in Community (plaintiff “sought damages in her complaint, which is sufficient to preserve our ability to consider the question”); (suggesting that a “continuing controversy over damages” would mean that the case was not moot). As explained above, I would follow history and tradition in construing Article III, and so I find that Campbell- Ewald’s mere offers did not deprive the District Court of jurisdiction. Accordingly, I concur in the judgment only. Cite as: 577 U. S. (2016) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 14–857 CAMPBELL-EWALD COMPANY, PETITIONER v.

Justice Roberts

dissenting

Campbell-Ewald v. Gomez

2016-02-09

https://www.courtlistener.com/opinion/3177215/campbell-ewald-v-gomez/

https://www.courtlistener.com/api/rest/v3/clusters/3177215/

This case is straightforward. Jose Gomez alleges that the marketing firm Campbell-Ewald (Campbell) sent him text messages without his permission, and he requests relief under the Telephone Consumer Protection Act. That Act permits consumers to recover statutory damages for unauthorized text messages. Based on Gomez’s allega- tions, the maximum that he could recover under the Act is $1500 per text message, plus the costs of filing suit. Campbell has offered to pay Gomez that amount, but it turns out he wants more. He wants a federal court to say he is right. The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff ’s entitle- ment to relief already there for the taking. As this Court has said, “[n]o principle is more fundamental to the judici- ary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976)). If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell 2 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting agreed to fully satisfy Gomez’s claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case. I respectfully dissent. I A In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely—but firmly—refused the request, conclud- ing that “the lines of separation drawn by the Constitution between the three departments of the government” pro- hibit the federal courts from issuing such advisory opin- ions. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1890–1893). That prohibition has remained “the oldest and most consistent thread in the federal law of justiciability.” Flast v. Cohen, 392 U.S. 83, 96 (1968) (internal quotation marks omitted). And for good reason. It is derived from Article III of the Constitution, which limits the authority of the federal courts to the adjudication of “Cases” or “Controversies.” U. S. Const., Art. III, §2. The case or controversy requirement is at once an important check on the powers of the Federal Judiciary and the source of those powers. In Marbury v. Madison, 1 Cranch 137, 177 (1803), Chief Justice Marshall established that it is “the province and duty of the judicial department to say what the law is.” Not because there is a provision in the Consti- tution that says so—there isn’t. Instead, the federal courts wield that power because they have to decide cases and controversies, and “[t]hose who apply [a] rule to par- ticular cases, must of necessity expound and interpret that rule.” Ibid. Federal courts may exercise their authority Cite as: 577 U. S. ____ (2016) 3 ROBERTS, C. J., dissenting “only in the last resort, and as a necessity in the determi- nation of real, earnest and vital controversy between individuals.” Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892); see also Allen v. Wright, 468 U.S. 737, 752 (1984). “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). A case or controversy exists when both the plaintiff and the defendant have a “personal stake” in the lawsuit. Camreta v. Greene, 563 U.S. 692, 701 (2011). A plaintiff demonstrates a personal stake by establishing standing to sue, which requires a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 468 U.S., at 751. A defendant demonstrates a personal stake through “an ongoing interest in the dispute.” Camreta, 563 U.S., at 701. The personal stake requirement persists through every stage of the lawsuit. It “is not enough that a dispute was very much alive when suit was filed”; the “parties must continue to have a personal stake in the outcome of the lawsuit” to prevent the case from becoming moot. Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990) (internal quotation marks omitted). If either the plaintiff or the defendant ceases to have a concrete interest in the outcome of the litigation, there is no longer a live case or controversy. A federal court that decides the merits of such a case runs afoul of the prohibition on advisory opinions. B Applying those basic principles to this case, it is clear that the lawsuit is moot. All agree that at the time Gomez filed suit, he had a personal stake in the litigation. In his complaint, Gomez alleged that he suffered an injury in 4 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting fact when he received unauthorized text messages from Campbell. To remedy that injury, he requested $1500 in statutory damages for each unauthorized text message. (It was later determined that he received only one text message.) What happened next, however, is critical: After Gomez’s initial legal volley, Campbell did not return fire. Instead, Campbell responded to the complaint with a freestanding offer to pay Gomez the maximum amount that he could recover under the statute: $1500 per unauthorized text message, plus court costs. Campbell also made an offer of judgment on the same terms under Rule 68 of the Federal Rules of Civil Procedure, which permits a defendant to recover certain attorney’s fees if the Rule 68 offer is unac- cepted and the plaintiff later recovers no more than the amount of the offer. Crucially, the District Court found that the “parties do not dispute” that Campbell’s Rule 68 offer—reflecting the same terms as the freestanding of- fer—“would have fully satisfied the individual claims asserted, or that could have been asserted,” by Gomez. 805 F. Supp. 2d 923, 927 (CD Cal. 2011). When a plaintiff files suit seeking redress for an alleged injury, and the defendant agrees to fully redress that injury, there is no longer a case or controversy for pur- poses of Article III. After all, if the defendant is willing to remedy the plaintiff ’s injury without forcing him to liti- gate, the plaintiff cannot demonstrate an injury in need of redress by the court, and the defendant’s interests are not adverse to the plaintiff. At that point, there is no longer any “necessity” to “expound and interpret” the law, Mar- bury, 1 Cranch, at 177, and the federal courts lack author- ity to hear the case. That is exactly what happened here: Once Campbell offered to fully remedy Gomez’s injury, there was no longer any “necessity” for the District Court Cite as: 577 U. S. ____ (2016) 5 ROBERTS, C. J., dissenting to hear the merits of his case, rendering the lawsuit moot.1 It is true that although Campbell has offered Gomez full relief, Campbell has not yet paid up. That does not affect the mootness inquiry under the facts of this case. Camp- bell is a multimillion dollar company, and the settlement offer here is for a few thousand dollars. The settlement offer promises “prompt payment,” App. to Pet. for Cert. 59a, and it would be mere pettifoggery to argue that Campbell might not make good on that promise. In any event, to the extent there is a question whether Campbell is willing and able to pay, there is an easy answer: have the firm deposit a certified check with the trial court. II The Court today holds that Gomez’s lawsuit is not moot. According to the Court, “An unaccepted settlement offer— like any unaccepted contract offer—is a legal nullity, with no operative effect.” Ante, at 7–8 (quoting Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013) (KAGAN, J., dissenting) (slip op., at 3)). And so, the Court concludes, if a plaintiff does not feel like accepting the —————— 1 The Court does not reach the question whether Gomez’s claim for class relief prevents this case from becoming moot. The majority nev- ertheless suggests that Campbell “sought to avoid a potential ad- verse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept.” Ante, at 11. But under this Court’s precedents Gomez does not have standing to seek relief based solely on the alleged injuries of others, and Gomez’s interest in sharing attorney’s fees among class members or in obtaining a class incentive award does not create Article III standing. See Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990) (An “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.”); Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 107 (1998) (“Obviously, however, a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. The litigation must give the plaintiff some other benefit besides reimburse- ment of costs that are a byproduct of the litigation itself.”). 6 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting defendant’s complete offer of relief, the lawsuit cannot be moot because it is as if no offer had ever been made. But a plaintiff is not the judge of whether federal litiga- tion is necessary, and a mere desire that there be federal litigation—for whatever reason—does not make it neces- sary. When a lawsuit is filed, it is up to the federal court to determine whether a concrete case or controversy exists between the parties. That remains true throughout the litigation. Article III does not require the parties to af- firmatively agree on a settlement before a case becomes moot. This Court has long held that when a defendant unilaterally remedies the injuries of the plaintiff, the case is moot—even if the plaintiff disagrees and refuses to settle the dispute, and even if the defendant continues to deny liability. In California v. San Pablo & Tulare R. Co., 149 U.S. 308 (1893), the State of California brought suit against a railroad company for back taxes. Before oral argument in this Court, the railroad offered to pay California the entire sum at issue, “together with interest, penalties and costs.” Id., at 313. Although California continued to litigate the case despite the railroad’s offer of complete relief, the Court concluded that the offer to pay the full sum, in addition to “the deposit of the money in a bank, which by a statute of the State ha[s] the same effect as actual payment and receipt of the money,” mooted the case. Id., at 314. The Court grounded its decision in San Pablo on the prohibition against advisory opinions, explaining that “the court is not empowered to decide moot questions or ab- stract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case.” Ibid. Although the majority here places great weight on Gomez’s rejection of Campbell’s offer of complete relief, San Pablo did not consider the agreement of the parties to Cite as: 577 U. S. ____ (2016) 7 ROBERTS, C. J., dissenting be relevant to the question of mootness. As the Court said then, “[n]o stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court.” Ibid. More recently, in Alvarez v. Smith, 558 U.S. 87 (2009), the Court found that a plaintiff ’s refusal to settle a case did not prevent it from becoming moot. In Alvarez, Chi- cago police officers had seized vehicles and cash from six individuals. The individuals filed suit against the city and two officials, claiming that they were entitled to a timely post-seizure hearing to seek the return of their property. The Court of Appeals ruled for the plaintiffs, and this Court granted certiorari. At oral argument, the parties informed the Court that the cars and some of the cash had been returned, and that the plaintiffs no longer sought the return of the remainder of the cash. Id., at 92. Nevertheless, the plaintiffs—much like Gomez—“continue[d] to dispute the lawfulness of the State’s hearing procedures.” Id., at 93. Although the plaintiffs refused to settle the case, and the defendants would not concede that the hearing procedures were un- lawful, the Court held that the case was moot. As the Court explained, the “dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights,” and “a dispute solely about the meaning of a law, abstracted from any concrete actual or threatened harm, falls outside the scope of the constitutional words ‘Cases’ and ‘Controversies.’ ” Ibid. The Court reached a similar conclusion in Already, LLC v. Nike, Inc., 568 U. S. ___ (2013). In that case, Nike filed suit alleging that two of Already’s athletic shoes violated Nike’s Air Force 1 trademark. In response, Already filed a counterclaim alleging that Nike’s trademark was invalid. Instead of litigating the counterclaim, Nike issued a uni- lateral covenant not to sue Already. In that covenant, Nike “unconditionally and irrevocably” promised not to 8 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting raise any trademark or unfair competition claims against Already based on its current shoe designs or any future “colorable imitations” of those designs. Id., at ___ (slip op., at 6). Nike did not, however, admit that its trademark was invalid. After issuing the covenant, Nike asked the District Court to dismiss the counterclaim as moot. Id., at ___ (slip op., at 2). Already did not agree to Nike’s covenant, and it did not view the covenant as sufficient to protect it from future trademark litigation. Already argued that without judi- cial resolution of the dispute, “Nike’s trademarks [would] hang over Already’s operations like a Damoclean sword.” Id., at ___ (slip op., at 9). This Court disagreed and dis- missed the suit. It found that because Nike had demon- strated “that the covenant encompasses all of [Nike’s] allegedly unlawful conduct,” and that the “challenged conduct cannot reasonably be expected to recur,” the counterclaim was moot. Id., at ___ (slip op., at 7–8). These precedents reflect an important constitutional principle: The agreement of the plaintiff is not required to moot a case. In San Pablo, California did not accept the railroad’s money in exchange for settling the State’s legal claims; in Alvarez, the plaintiffs did not receive their cars and cash in return for an agreement to stop litigating the case; and in Already, the eponymous shoe company never agreed to Nike’s covenant not to sue. In each of those cases, despite the plaintiff ’s desire not to settle, the Court held that the lawsuit was moot. The majority attempts to distinguish these precedents by emphasizing that the plaintiffs in all three cases re- ceived complete relief, but that is not the point. I had thought that the theory of the Court’s opinion was that acceptance is required before complete relief will moot a case. But consider the majority’s discussion of Already: What did Nike’s covenant do? It “afforded Already blanket protection from future trademark litigation.” Ante, at 10, Cite as: 577 U. S. ____ (2016) 9 ROBERTS, C. J., dissenting n. 5. What happened as a result of this complete relief? “The risk that underpinned Already’s standing” thus “ceased to exist.” Ibid. Even though what? Even though “Nike’s covenant was unilateral,” and not accepted by Already. Ibid. The majority is correct that because Gomez did not accept Campbell’s settlement, it is a “legal nullity” as a matter of contract law. The question, however, is not whether there is a contract; it is whether there is a case or controversy under Article III.2 If the defendant is willing to give the plaintiff everything he asks for, there is no case or controversy to adjudicate, and the lawsuit is moot.3 —————— 2 The majority suggests that this case is analogous to U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), where the Court declined to vacate a lower court decision that became moot on certiorari when the parties voluntarily settled the case. Bancorp is inapposite—it involves the equitable powers of the courts to vacate judgments in moot cases, not the Article III question whether a case is moot in the first place. The premise of Bancorp is that it is up to the federal courts—and not the parties—to decide what to do once a case becomes moot. The majority’s position, in contrast, would leave it to the plaintiff to decide whether a case is moot. 3 To further support its Article III-by-contract theory of the case, the Court looks to Federal Rule of Civil Procedure 68, which states that an unaccepted offer of judgment “is considered withdrawn.” Rule 68(b). But Campbell made Gomez both a Rule 68 offer and a freestanding settlement offer. By its terms, Rule 68 does not apply to the latter. The majority’s only argument with respect to the freestanding settle- ment offer is that under the rules of contract law, an unaccepted offer is a “legal nullity.” Ante, at 7. As explained, however, under the princi- ples of Article III, an unaccepted offer of complete relief moots a case. JUSTICE THOMAS, concurring in the judgment, would decide the case based on whether there was a formal tender under the common law. This suffers from the same flaw as the majority opinion. The question is not whether the requirements of the common law of tender have been met, but whether there is a case or controversy for purposes of Article III. The Supreme Court cases we have discussed make clear that the two questions are not the same. To cite just one example, JUSTICE THOMAS argues that a tender under the common law must include an admission of liability. Ante, at 2–3. Our precedents, however, plainly 10 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting * * * The case or controversy requirement serves an essential purpose: It ensures that the federal courts expound the law “only in the last resort, and as a necessity.” Allen, 468 U.S., at 752 (internal quotation marks omitted). It is the necessity of resolving a live dispute that reconciles the exercise of profound power by unelected judges with the principles of self-governance, ensuring adherence to “the proper—and properly limited—role of the courts in a democratic society.” Id., at 750 (internal quotation marks omitted). There is no such necessity here. As the District Court found, Campbell offered Gomez full relief. Although Gomez nonetheless wants to continue litigating, the issue is not what the plaintiff wants, but what the federal courts may do. It is up to those courts to decide whether each party continues to have the requisite personal stake in the lawsuit, and if not, to dismiss the case as moot. The Court today takes that important responsibility away from the federal courts and hands it to the plaintiff. The good news is that this case is limited to its facts. The majority holds that an offer of complete relief is insuf- ficient to moot a case. The majority does not say that payment of complete relief leads to the same result. For aught that appears, the majority’s analysis may have come out differently if Campbell had deposited the offered funds with the District Court. See ante, at 11–12. This Court leaves that question for another day—assuming there are other plaintiffs out there who, like Gomez, won’t take “yes” for an answer. —————— establish that an admission of liability is not required for a case to be moot under Article III. See supra, at 7–8. We are not at liberty to proceed as if those Article III precedents do not exist. Cite as: 577 U. S. ____ (2016) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 14–857 _________________ CAMPBELL-EWALD COMPANY, PETITIONER v.

This case is straightforward. Jose Gomez alleges that the marketing firm Campbell-Ewald (Campbell) sent him text messages without his permission, and he requests relief under the Telephone Consumer Protection Act. That Act permits consumers to recover statutory damages for unauthorized text messages. Based on Gomez’s allega- tions, the maximum that he could recover under the Act is $1500 per text message, plus the costs of filing suit. Campbell has offered to pay Gomez that amount, but it turns out he wants more. He wants a federal court to say he is right. The problem for Gomez is that the federal courts exist to resolve real disputes, not to rule on a plaintiff ’s entitle- ment to relief already there for the taking. As this Court has said, “[n]o principle is more fundamental to the judici- ary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) ). If there is no actual case or controversy, the lawsuit is moot, and the power of the federal courts to declare the law has come to an end. Here, the District Court found that Campbell 2 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting agreed to fully satisfy Gomez’s claims. That makes the case moot, and Gomez is not entitled to a ruling on the merits of a moot case. I respectfully dissent. I A In 1793, President George Washington sent a letter to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for the opinion of the Court on the rights and obligations of the United States with respect to the war between Great Britain and France. The Supreme Court politely—but firmly—refused the request, conclud- ing that “the lines of separation drawn by the Constitution between the three departments of the government” pro- hibit the federal courts from issuing such advisory opin- ions. 3 Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1890–1893). That prohibition has remained “the oldest and most consistent thread in the federal law of justiciability.” (internal quotation marks omitted). And for good reason. It is derived from Article III of the Constitution, which limits the authority of the federal courts to the adjudication of “Cases” or “Controversies.” U. S. Const., Art. III, The case or controversy requirement is at once an important check on the powers of the Federal Judiciary and the source of those powers. In 1 Cranch 1, (1803), Chief Justice Marshall established that it is “the province and duty of the judicial department to say what the law is.” Not because there is a provision in the Consti- tution that says so—there isn’t. Instead, the federal courts wield that power because they have to decide cases and controversies, and “[t]hose who apply [a] rule to par- ticular cases, must of necessity expound and interpret that rule.” Federal courts may exercise their authority Cite as: 577 U. S. (2016) 3 ROBERTS, C. J., dissenting “only in the last resort, and as a necessity in the determi- nation of real, earnest and vital controversy between individuals.” Chicago & Grand Trunk R. ; see also Allen v. Wright, 468 U.S. 7, 752 (1984). “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler A case or controversy exists when both the plaintiff and the defendant have a “personal stake” in the lawsuit. A plaintiff demonstrates a personal stake by establishing standing to sue, which requires a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 468 U.S., at 751. A defendant demonstrates a personal stake through “an ongoing interest in the dispute.” Camreta, 563 U.S., at The personal stake requirement persists through every stage of the lawsuit. It “is not enough that a dispute was very much alive when suit was filed”; the “parties must continue to have a personal stake in the outcome of the lawsuit” to prevent the case from becoming moot. Lewis v. Continental Bank Corp., (internal quotation marks omitted). If either the plaintiff or the defendant ceases to have a concrete interest in the outcome of the litigation, there is no longer a live case or controversy. A federal court that decides the merits of such a case runs afoul of the prohibition on advisory opinions. B Applying those basic principles to this case, it is clear that the lawsuit is moot. All agree that at the time Gomez filed suit, he had a personal stake in the litigation. In his complaint, Gomez alleged that he suffered an injury in 4 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting fact when he received unauthorized text messages from Campbell. To remedy that injury, he requested $1500 in statutory damages for each unauthorized text message. (It was later determined that he received only one text message.) What happened next, however, is critical: After Gomez’s initial legal volley, Campbell did not return fire. Instead, Campbell responded to the complaint with a freestanding offer to pay Gomez the maximum amount that he could recover under the statute: $1500 per unauthorized text message, plus court costs. Campbell also made an offer of judgment on the same terms under Rule 68 of the Federal Rules of Civil Procedure, which permits a defendant to recover certain attorney’s fees if the Rule 68 offer is unac- cepted and the plaintiff later recovers no more than the amount of the offer. Crucially, the District Court found that the “parties do not dispute” that Campbell’s Rule 68 offer—reflecting the same terms as the freestanding of- fer—“would have fully satisfied the individual claims asserted, or that could have been asserted,” by Gomez. When a plaintiff files suit seeking redress for an alleged injury, and the defendant agrees to fully redress that injury, there is no longer a case or controversy for pur- poses of Article III. After all, if the defendant is willing to remedy the plaintiff ’s injury without forcing him to liti- gate, the plaintiff cannot demonstrate an injury in need of redress by the court, and the defendant’s interests are not adverse to the plaintiff. At that point, there is no longer any “necessity” to “expound and interpret” the law, Mar- 1 Cranch, at and the federal courts lack author- ity to hear the case. That is exactly what happened here: Once Campbell offered to fully remedy Gomez’s injury, there was no longer any “necessity” for the District Court Cite as: 577 U. S. (2016) 5 ROBERTS, C. J., dissenting to hear the merits of his case, rendering the lawsuit moot.1 It is true that although Campbell has offered Gomez full relief, Campbell has not yet paid up. That does not affect the mootness inquiry under the facts of this case. Camp- bell is a multimillion dollar company, and the settlement offer here is for a few thousand dollars. The settlement offer promises “prompt payment,” App. to Pet. for Cert. 59a, and it would be mere pettifoggery to argue that Campbell might not make good on that promise. In any event, to the extent there is a question whether Campbell is willing and able to pay, there is an easy answer: have the firm deposit a certified check with the trial court. II The Court today holds that Gomez’s lawsuit is not moot. According to the Court, “An unaccepted settlement offer— like any unaccepted contract offer—is a legal nullity, with no operative effect.” Ante, at 7–8 (quoting Genesis HealthCare Corp. v. Symczyk, 569 U. S. (2013) (KAGAN, J., dissenting) (slip op., at 3)). And so, the Court concludes, if a plaintiff does not feel like accepting the —————— 1 The Court does not reach the question whether Gomez’s claim for class relief prevents this case from becoming moot. The majority nev- ertheless suggests that Campbell “sought to avoid a potential ad- verse decision, one that could expose it to damages a thousand-fold larger than the bid Gomez declined to accept.” Ante, at 11. But under this Court’s precedents Gomez does not have standing to seek relief based solely on the alleged injuries of others, and Gomez’s interest in sharing attorney’s fees among class members or in obtaining a class incentive award does not create Article III standing. See Lewis v. Continental Bank Corp., (An “interest in attorney’s fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.”); Steel (“Obviously, however, a plaintiff cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing suit. The litigation must give the plaintiff some other benefit besides reimburse- ment of costs that are a byproduct of the litigation itself.”). 6 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting defendant’s complete offer of relief, the lawsuit cannot be moot because it is as if no offer had ever been made. But a plaintiff is not the judge of whether federal litiga- tion is necessary, and a mere desire that there be federal litigation—for whatever reason—does not make it neces- sary. When a lawsuit is filed, it is up to the federal court to determine whether a concrete case or controversy exists between the parties. That remains true throughout the litigation. Article III does not require the parties to af- firmatively agree on a settlement before a case becomes moot. This Court has long held that when a defendant unilaterally remedies the injuries of the plaintiff, the case is moot—even if the plaintiff disagrees and refuses to settle the dispute, and even if the defendant continues to deny liability. In California v. San Pablo & Tulare R. Co., 149 U.S. 308 (1893), the State of California brought suit against a railroad company for back taxes. Before oral argument in this Court, the railroad offered to pay California the entire sum at issue, “together with interest, penalties and costs.” Although California continued to litigate the case despite the railroad’s offer of complete relief, the Court concluded that the offer to pay the full sum, in addition to “the deposit of the money in a bank, which by a statute of the State ha[s] the same effect as actual payment and receipt of the money,” mooted the case. at 314. The Court grounded its decision in San Pablo on the prohibition against advisory opinions, explaining that “the court is not empowered to decide moot questions or ab- stract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case.” Although the majority here places great weight on Gomez’s rejection of Campbell’s offer of complete relief, San Pablo did not consider the agreement of the parties to Cite as: 577 U. S. (2016) 7 ROBERTS, C. J., dissenting be relevant to the question of mootness. As the Court said then, “[n]o stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court.” More recently, in the Court found that a plaintiff ’s refusal to settle a case did not prevent it from becoming moot. In Alvarez, Chi- cago police officers had seized vehicles and cash from six individuals. The individuals filed suit against the city and two officials, claiming that they were entitled to a timely post-seizure hearing to seek the return of their property. The Court of Appeals ruled for the plaintiffs, and this Court granted certiorari. At oral argument, the parties informed the Court that the cars and some of the cash had been returned, and that the plaintiffs no longer sought the return of the remainder of the cash. Nevertheless, the plaintiffs—much like Gomez—“continue[d] to dispute the lawfulness of the State’s hearing procedures.” Although the plaintiffs refused to settle the case, and the defendants would not concede that the hearing procedures were un- lawful, the Court held that the case was moot. As the Court explained, the “dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights,” and “a dispute solely about the meaning of a law, abstracted from any concrete actual or threatened harm, falls outside the scope of the constitutional words ‘Cases’ and ‘Controversies.’ ” The Court reached a similar conclusion in Already, LLC v. Nike, Inc., 568 U. S. (2013). In that case, Nike filed suit alleging that two of Already’s athletic shoes violated Nike’s Air Force 1 trademark. In response, Already filed a counterclaim alleging that Nike’s trademark was invalid. Instead of litigating the counterclaim, Nike issued a uni- lateral covenant not to sue Already. In that covenant, Nike “unconditionally and irrevocably” promised not to 8 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting raise any trademark or unfair competition claims against Already based on its current shoe designs or any future “colorable imitations” of those designs. at (slip op., at 6). Nike did not, however, admit that its trademark was invalid. After issuing the covenant, Nike asked the District Court to dismiss the counterclaim as moot. at (slip op., at 2). Already did not agree to Nike’s covenant, and it did not view the covenant as sufficient to protect it from future trademark litigation. Already argued that without judi- cial resolution of the dispute, “Nike’s trademarks [would] hang over Already’s operations like a Damoclean sword.” at (slip op., at 9). This Court disagreed and dis- missed the suit. It found that because Nike had demon- strated “that the covenant encompasses all of [Nike’s] allegedly unlawful conduct,” and that the “challenged conduct cannot reasonably be expected to recur,” the counterclaim was moot. at (slip op., at 7–8). These precedents reflect an important constitutional principle: The agreement of the plaintiff is not required to moot a case. In San Pablo, California did not accept the railroad’s money in exchange for settling the State’s legal claims; in Alvarez, the plaintiffs did not receive their cars and cash in return for an agreement to stop litigating the case; and in Already, the eponymous shoe company never agreed to Nike’s covenant not to sue. In each of those cases, despite the plaintiff ’s desire not to settle, the Court held that the lawsuit was moot. The majority attempts to distinguish these precedents by emphasizing that the plaintiffs in all three cases re- ceived complete relief, but that is not the point. I had thought that the theory of the Court’s opinion was that acceptance is required before complete relief will moot a case. But consider the majority’s discussion of Already: What did Nike’s covenant do? It “afforded Already blanket protection from future trademark litigation.” Ante, at 10, Cite as: 577 U. S. (2016) 9 ROBERTS, C. J., dissenting n. 5. What happened as a result of this complete relief? “The risk that underpinned Already’s standing” thus “ceased to exist.” Even though what? Even though “Nike’s covenant was unilateral,” and not accepted by Already. The majority is correct that because Gomez did not accept Campbell’s settlement, it is a “legal nullity” as a matter of contract law. The question, however, is not whether there is a contract; it is whether there is a case or controversy under Article III.2 If the defendant is willing to give the plaintiff everything he asks for, there is no case or controversy to adjudicate, and the lawsuit is moot.3 —————— 2 The majority suggests that this case is analogous to U. S. Bancorp Mortgage where the Court declined to vacate a lower court decision that became moot on certiorari when the parties voluntarily settled the case. Bancorp is inapposite—it involves the equitable powers of the courts to vacate judgments in moot cases, not the Article III question whether a case is moot in the first place. The premise of Bancorp is that it is up to the federal courts—and not the parties—to decide what to do once a case becomes moot. The majority’s position, in contrast, would leave it to the plaintiff to decide whether a case is moot. 3 To further support its Article III-by-contract theory of the case, the Court looks to Federal Rule of Civil Procedure 68, which states that an unaccepted offer of judgment “is considered withdrawn.” Rule 68(b). But Campbell made Gomez both a Rule 68 offer and a freestanding settlement offer. By its terms, Rule 68 does not apply to the latter. The majority’s only argument with respect to the freestanding settle- ment offer is that under the rules of contract law, an unaccepted offer is a “legal nullity.” Ante, at 7. As explained, however, under the princi- ples of Article III, an unaccepted offer of complete relief moots a case. JUSTICE THOMAS, concurring in the judgment, would decide the case based on whether there was a formal tender under the common law. This suffers from the same flaw as the majority opinion. The question is not whether the requirements of the common law of tender have been met, but whether there is a case or controversy for purposes of Article III. The Supreme Court cases we have discussed make clear that the two questions are not the same. To cite just one example, JUSTICE THOMAS argues that a tender under the common law must include an admission of liability. Ante, at 2–3. Our precedents, however, plainly 10 CAMPBELL-EWALD CO. v. GOMEZ ROBERTS, C. J., dissenting * * * The case or controversy requirement serves an essential purpose: It ensures that the federal courts expound the law “only in the last resort, and as a necessity.” Allen, 468 U.S., at 752 (internal quotation marks omitted). It is the necessity of resolving a live dispute that reconciles the exercise of profound power by unelected judges with the principles of self-governance, ensuring adherence to “the proper—and properly limited—role of the courts in a democratic society.” (internal quotation marks omitted). There is no such necessity here. As the District Court found, Campbell offered Gomez full relief. Although Gomez nonetheless wants to continue litigating, the issue is not what the plaintiff wants, but what the federal courts may do. It is up to those courts to decide whether each party continues to have the requisite personal stake in the lawsuit, and if not, to dismiss the case as moot. The Court today takes that important responsibility away from the federal courts and hands it to the plaintiff. The good news is that this case is limited to its facts. The majority holds that an offer of complete relief is insuf- ficient to moot a case. The majority does not say that payment of complete relief leads to the same result. For aught that appears, the majority’s analysis may have come out differently if Campbell had deposited the offered funds with the District Court. See ante, at 11–12. This Court leaves that question for another day—assuming there are other plaintiffs out there who, like Gomez, won’t take “yes” for an answer. —————— establish that an admission of liability is not required for a case to be moot under Article III. See at 7–8. We are not at liberty to proceed as if those Article III precedents do not exist. Cite as: 577 U. S. (2016) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 14–857 CAMPBELL-EWALD COMPANY, PETITIONER v.

Justice Alito

second_dissenting

Campbell-Ewald v. Gomez

2016-02-09

https://www.courtlistener.com/opinion/3177215/campbell-ewald-v-gomez/

https://www.courtlistener.com/api/rest/v3/clusters/3177215/

I join THE CHIEF JUSTICE’s dissent. I agree that a de- fendant may extinguish a plaintiff ’s personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III prec- edents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff ’s acceptance. E.g., Already, LLC v. Nike, Inc., 568 U. S. ___ (2013) (holding that Nike’s unilateral covenant not to sue mooted Al- ready’s trademark invalidity claim). I write separately to emphasize what I see as the linchpin for finding mootness in this case: There is no real dispute that Campbell would “make good on [its] promise” to pay Gomez the money it offered him if the case were dismissed. Ante, at 5 (opinion of ROBERTS, C. J.). Absent this fact, I would be compelled to find that the case is not moot. Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resump- tion of the challenged conduct as soon as the case is dis- missed.” Knox v. Service Employees, 567 U. S. ___, ___– ___ (2012) (slip op., at 6–7). To obtain dismissal in such circumstances, the defendant must “ ‘bea[r] the formidable 2 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Already, supra, at ___ (slip op., at 4) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Ser- vices (TOC), Inc., 528 U.S. 167, 190 (2000)). We have typically applied that rule in cases involving claims for prospective relief, see Knox, supra, at ___ (slip op., at 7), but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “abso- lutely clear” that the plaintiff will be able to receive the offered relief. Already, supra, at ___ (slip op., at 8).1 Consider an offer of complete relief from a defendant that has no intention of actually paying the promised sums, or from a defendant whose finances are so shaky that it cannot produce the necessary funds. In both in- stances, there is a question whether the defendant will back up its offer to pay with an actual payment. If those cases were dismissed as moot, the defendant’s failure to follow through on its promise to pay would leave the plain- tiff forever emptyhanded. In the language of our mootness cases, those cases would not be moot because a court could still grant the plaintiff “effectual relief,” Knox, supra, at ___ (slip op., at 7) (internal quotation marks omitted)— namely, the relief sought in the first place. The plaintiff retains a “personal stake” in continuing the litigation. Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation marks omitted). An offer of complete relief thus will not always warrant dismissal. —————— 1 I say it must be clear that the plaintiff “will be able to receive” the relief, rather than that the plaintiff “will receive” the relief, to account for the possibility of an obstinate plaintiff who refuses to take any relief even if the case is dismissed. A plaintiff cannot thwart mootness by refusing complete relief presented on a silver platter. Cite as: 577 U. S. ____ (2016) 3 ALITO, J., dissenting Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff ’s injury cannot reason- ably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has ren- dered a damages claim moot. How, then, can a defendant make “absolutely clear” that it will pay the relief it has offered? The most straightfor- ward way is simply to pay over the money. The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff ’s name. See California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313–314 (1893). Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot. See Fed. Rule Civ. Proc. 67; 28 U.S. C. §§2041, 2042. In these situations, there will rarely be any serious doubt that the plaintiff can obtain the offered money.2 —————— 2 Depositing funds with the district court or another intermediary may be particularly attractive to defendants because it would ensure that the plaintiff can obtain the money, yet allow the defendant to reclaim the funds if the court refuses to dismiss the case (for example, because it determines the offer is for less than full relief ). Contrary to the views of Gomez’s amicus, there is no reason to force a defendant to effect an “ ‘irrevocable transfer of title’ ” to the funds without regard to whether doing so succeeds in mooting the case. Brief for American Federation of Labor and Congress of Industrial Organizations 10. Likewise, because I believe our precedents “provide sufficiently specific principles to resolve this case,” I would not apply the “rigid formalities” of common-law tender in this context. Ante, at 1, 2 (THOMAS, J., concur- ring in judgment). Article III demands that a plaintiff always have a personal stake in continuing the litigation, and that stake is extin- guished if the plaintiff is freely able to obtain full relief in the event the case is dismissed as moot. 4 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting While outright payment is the surest way for a defend- ant to make the requisite mootness showing, I would not foreclose other means of doing so. The question is whether it is certain the defendant will pay, not whether the de- fendant has already paid. I believe Campbell clears the mark in this case. As THE CHIEF JUSTICE observes, there is no dispute Campbell has the means to pay the few thousand dollars it offered Gomez, and there is no basis “to argue that Campbell might not make good on that promise” if the case were dismissed. Ante, at 5. Thus, in the circumstances of this case, Campbell’s offer of com- plete relief should have rendered Gomez’s damages claim moot. But the same would not necessarily be true for other defendants, particularly those that face more sub- stantial claims, possess less secure finances, or extend offers of questionable sincerity. Cf. Already, 568 U. S., at ___–___ (KENNEDY, J., concurring) (slip op., at 3–4) (em- phasizing the “formidable burden on the party asserting mootness” and noting possible “doubts that Nike’s showing [of mootness] would suffice in other circumstances”). The Court does not dispute Campbell’s ability or will- ingness to pay, but nonetheless concludes that its unac- cepted offer did not moot Gomez’s claim. While I disagree with that result on these facts, I am heartened that the Court appears to endorse the proposition that a plaintiff ’s claim is moot once he has “received full redress” from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing Already, supra, and Alvarez v. Smith, 558 U.S. 87 (2009)). Today’s decision thus does not prevent a defendant who actually pays complete relief—either di- rectly to the plaintiff or to a trusted intermediary—from seeking dismissal on mootness grounds.3 —————— 3 Although it does not resolve the issue, the majority raises the possi- bility that a defendant must both pay the requisite funds and have “the court . . . ente[r] judgment for the plaintiff in that amount.” Ante, at 11. Cite as: 577 U. S. ____ (2016) 5 ALITO, J., dissenting —————— I do not see how that can be reconciled with Already, which affirmed an order of dismissal—not judgment for the plaintiff—where the plaintiff had received full relief from the defendant. Already, LLC v. Nike, Inc., 568 U. S. ___, ___–___, ___ (2013) (slip op., at 2–3, 15).

I join THE CHIEF JUSTICE’s dissent. I agree that a de- fendant may extinguish a plaintiff ’s personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III prec- edents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff ’s acceptance. E.g., LLC v. Nike, Inc., 568 U. S. (2013) (holding that Nike’s unilateral covenant not to sue mooted Al- ready’s trademark invalidity claim). I write separately to emphasize what I see as the linchpin for finding mootness in this case: There is no real dispute that Campbell would “make good on [its] promise” to pay Gomez the money it offered him if the case were dismissed. Ante, at 5 (opinion of ROBERTS, C. J.). Absent this fact, I would be compelled to find that the case is not moot. Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resump- tion of the challenged conduct as soon as the case is dis- missed.” v. Service Employees, 567 U. S. – (2012) (slip op., at 6–7). To obtain dismissal in such circumstances, the defendant must “ ‘bea[r] the formidable 2 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” at (slip op., at 4) (quoting Friends of the Earth, ). We have typically applied that rule in cases involving claims for prospective relief, see at (slip op., at 7), but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “abso- lutely clear” that the plaintiff will be able to receive the offered relief. at (slip op., at 8).1 Consider an offer of complete relief from a defendant that has no intention of actually paying the promised sums, or from a defendant whose finances are so shaky that it cannot produce the necessary funds. In both in- stances, there is a question whether the defendant will back up its offer to pay with an actual payment. If those cases were dismissed as moot, the defendant’s failure to follow through on its promise to pay would leave the plain- tiff forever emptyhanded. In the language of our mootness cases, those cases would not be moot because a court could still grant the plaintiff “effectual relief,” at (slip op., at 7) (internal quotation marks omitted)— namely, the relief sought in the first place. The plaintiff retains a “personal stake” in continuing the litigation. Genesis HealthCare Corp. v. Symczyk, 569 U. S. (2013) (slip op., at 4) (internal quotation marks omitted). An offer of complete relief thus will not always warrant dismissal. —————— 1 I say it must be clear that the plaintiff “will be able to receive” the relief, rather than that the plaintiff “will receive” the relief, to account for the possibility of an obstinate plaintiff who refuses to take any relief even if the case is dismissed. A plaintiff cannot thwart mootness by refusing complete relief presented on a silver platter. Cite as: 577 U. S. (2016) 3 ALITO, J., dissenting Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff ’s injury cannot reason- ably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has ren- dered a damages claim moot. How, then, can a defendant make “absolutely clear” that it will pay the relief it has offered? The most straightfor- ward way is simply to pay over the money. The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff ’s name. See California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313–314 (1893). Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot. See Fed. Rule Civ. Proc. 67; 28 U.S. C. 2042. In these situations, there will rarely be any serious doubt that the plaintiff can obtain the offered money.2 —————— 2 Depositing funds with the district court or another intermediary may be particularly attractive to defendants because it would ensure that the plaintiff can obtain the money, yet allow the defendant to reclaim the funds if the court refuses to dismiss the case (for example, because it determines the offer is for less than full relief ). Contrary to the views of Gomez’s amicus, there is no reason to force a defendant to effect an “ ‘irrevocable transfer of title’ ” to the funds without regard to whether doing so succeeds in mooting the case. Brief for American Federation of Labor and Congress of Industrial Organizations 10. Likewise, because I believe our precedents “provide sufficiently specific principles to resolve this case,” I would not apply the “rigid formalities” of common-law tender in this context. Ante, at 1, 2 (THOMAS, J., concur- ring in judgment). Article III demands that a plaintiff always have a personal stake in continuing the litigation, and that stake is extin- guished if the plaintiff is freely able to obtain full relief in the event the case is dismissed as moot. 4 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting While outright payment is the surest way for a defend- ant to make the requisite mootness showing, I would not foreclose other means of doing so. The question is whether it is certain the defendant will pay, not whether the de- fendant has already paid. I believe Campbell clears the mark in this case. As THE CHIEF JUSTICE observes, there is no dispute Campbell has the means to pay the few thousand dollars it offered Gomez, and there is no basis “to argue that Campbell might not make good on that promise” if the case were dismissed. Ante, at 5. Thus, in the circumstances of this case, Campbell’s offer of com- plete relief should have rendered Gomez’s damages claim moot. But the same would not necessarily be true for other defendants, particularly those that face more sub- stantial claims, possess less secure finances, or extend offers of questionable sincerity. Cf. 568 U. S., at – (KENNEDY, J., concurring) (slip op., at 3–4) (em- phasizing the “formidable burden on the party asserting mootness” and noting possible “doubts that Nike’s showing [of mootness] would suffice in other circumstances”). The Court does not dispute Campbell’s ability or will- ingness to pay, but nonetheless concludes that its unac- cepted offer did not moot Gomez’s claim. While I disagree with that result on these facts, I am heartened that the Court appears to endorse the proposition that a plaintiff ’s claim is moot once he has “received full redress” from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing and Alvarez v. Smith, 558 U.S. 87 (2009)). Today’s decision thus does not prevent a defendant who actually pays complete relief—either di- rectly to the plaintiff or to a trusted intermediary—from seeking dismissal on mootness grounds.3 —————— 3 Although it does not resolve the issue, the majority raises the possi- bility that a defendant must both pay the requisite funds and have “the court ente[r] judgment for the plaintiff in that amount.” Ante, at 11. Cite as: 577 U. S. (2016) 5 ALITO, J., dissenting —————— I do not see how that can be reconciled with which affirmed an order of dismissal—not judgment for the plaintiff—where the plaintiff had received full relief from the defendant. LLC v. Nike, Inc., 568 U. S. –, (2013) (slip op., at 2–3, 15).

Justice Thomas

majority

Quanta Computer, Inc. v. LG Electronics, Inc.

2008-06-09

https://www.courtlistener.com/opinion/145800/quanta-computer-inc-v-lg-electronics-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145800/

2007-048

For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item. In this case, we decide whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods. The Court of Appeals for the Federal Circuit held that the doctrine does not apply to method patents at all and, in the alternative, that it does not apply here because the sales were not authorized by the license agreement. We disagree on both scores. Because the exhaustion doctrine applies to method patents, and because the license authorizes the sale of components that substantially embody the patents in suit, the sale exhausted the patents. I Respondent LG Electronics, Inc. (LGE), purchased a portfolio of computer technology patents in 1999, including the three patents at issue here: U.S. Patent Nos. 4,939,641 ('641); 5,379,379 ('379); and 5,077,733 ('733) (collectively LGE Patents). The main functions of a computer system are carried out on a microprocessor, or central processing unit, which interprets program instructions, processes data, and controls other devices in the system. A set of wires, or bus, connects the microprocessor to a chipset, which transfers data between the microprocessor and other devices, including the keyboard, mouse, monitor, hard drive, memory, and disk drives. The data processed by the computer are stored principally in random access memory, also called main memory. Webster's New World Dictionary of Computer Terms 334, 451 (8th ed.2000). Frequently accessed data are generally stored in cache memory, which permits faster access than main memory and is often located on the microprocessor itself. Id., at 84. When copies of data are stored in both the cache and main memory, problems may arise when one copy is changed but the other still contains the original "stale" version of the data. J. Handy, Cache Memory Book 124 (2d ed.1993). The '641 patent addresses this problem. It discloses a system for ensuring that the most current data are retrieved from main memory by monitoring data requests and updating main memory from the cache when stale data are requested. LG Electronics, Inc. v. Bizcom Electronics, Inc., 453 F.3d 1364, 1377 (C.A.Fed.2006). The '379 patent relates to the coordination of requests to read from, and write to, main memory. Id., at 1378. Processing these requests in chronological order can slow down a system because read requests are faster to execute than write requests. Processing all read requests first ensures speedy access, but may result in the retrieval of outdated data if a read request for a certain piece of data is processed before an outstanding write request for the same data. The '379 patent discloses an efficient method of organizing read and write requests while maintaining accuracy by allowing the computer to execute only read requests until it needs data for which there is an outstanding write request. LG Electronics, Inc. v. Asustek Computer, Inc., No. C 01-02187 CW et al., Order Construing Disputed Terms and Phrases, p. 42 (ND Cal., Aug. 20, 2002). Upon receiving such a read request, the computer executes pending write requests first and only then returns to the read requests so that the most up-to-date data are retrieved. Ibid. The '733 patent addresses the problem of managing the data traffic on a bus connecting two computer components, so *2114 that no one device monopolizes the bus. It allows multiple devices to share the bus, giving heavy users greater access. This patent describes methods that establish a rotating priority system under which each device alternately has priority access to the bus for a preset number of cycles and heavier users can maintain priority for more cycles without "hogging" the device indefinitely. Id., at 37-38. LGE licensed a patent portfolio, including the LGE Patents, to Intel Corporation (Intel). The cross-licensing agreement (License Agreement) permits Intel to manufacture and sell microprocessors and chipsets that use the LGE Patents (the Intel Products). The License Agreement authorizes Intel to "`make, use, sell (directly or indirectly), offer to sell, import or otherwise dispose of'" its own products practicing the LGE Patents. Brief for Petitioners 8 (quoting App. 154).[1] Notwithstanding this broad language, the License Agreement contains some limitations. Relevant here, it stipulates that no license "`is granted by either party hereto . . . to any third party for the combination by a third party of Licensed Products of either party with items, components, or the like acquired . . . from sources other than a party hereto, or for the use, import, offer for sale or sale of such combination.'" Brief for Petitioners 8 (quoting App. 164). The License Agreement purports not to alter the usual rules of patent exhaustion, however, providing that, "`[n]otwithstanding anything to the contrary contained in this Agreement, the parties agree that nothing herein shall in any way limit or alter the effect of patent exhaustion that would otherwise apply when a party hereto sells any of its Licensed Products.'" Brief for Petitioners 8 (quoting App. 164). In a separate agreement (Master Agreement), Intel agreed to give written notice to its own customers informing them that, while it had obtained a broad license "`ensur[ing] that any Intel product that you purchase is licensed by LGE and thus does not infringe any patent held by LGE,'" the license "`does not extend, expressly or by implication, to any product that you make by combining an Intel product with any non-Intel product.'" Brief for Respondent 9 (emphasis deleted) (quoting App. 198). The Master Agreement also provides that "`a breach of this Agreement shall have no effect on and shall not be grounds for termination of the Patent License.'" Brief for Petitioners 9 (quoting App. 176). Petitioners, including Quanta Computer (collectively Quanta), are a group of computer manufacturers. Quanta purchased microprocessors and chipsets from Intel and received the notice required by the Master Agreement. Nonetheless, Quanta manufactured computers using Intel parts in combination with non-Intel memory and buses in ways that practice the LGE Patents. Quanta does not modify the Intel components and follows Intel's specifications to incorporate the parts into its own systems. LGE filed a complaint against Quanta, asserting that the combination of the Intel Products with non-Intel memory and buses infringed the LGE Patents. The District Court granted summary judgment to Quanta, holding that, for purposes of the patent exhaustion doctrine, the license LGE granted to Intel resulted in forfeiture of any potential infringement actions *2115 against legitimate purchasers of the Intel Products. LG Electronics, Inc. v. Asustek Computer, Inc., 65 U.S.P.Q. 2d (BNA) 1589, 1593, 1600 (N.D.Cal.2002). The court found that, although the Intel Products do not fully practice any of the patents at issue, they have no reasonable noninfringing use and therefore their authorized sale exhausted patent rights in the completed computers under United States v. Univis Lens Co., 316 U.S. 241, 62 S. Ct. 1088, 86 L. Ed. 1408 (1942). Asustek, supra, at 1598-1600. In a subsequent order limiting its summary judgment ruling, the court held that patent exhaustion applies only to apparatus or composition-of-matter claims that describe a physical object, and does not apply to process, or method, claims that describe operations to make or use a product. LG Electronics, Inc. v. Asustek Computer, Inc., 248 F. Supp. 2d 912, 918 (N.D.Cal.2003). Because each of the LGE Patents includes method claims, exhaustion did not apply. The Court of Appeals for the Federal Circuit affirmed in part and reversed in part. It agreed that the doctrine of patent exhaustion does not apply to method claims. In the alternative, it concluded that exhaustion did not apply because LGE did not license Intel to sell the Intel Products to Quanta for use in combination with non-Intel products. 453 F.3d, at 1370. We granted certiorari, 551 U.S. ___, 128 S. Ct. 28, 168 L. Ed. 2d 805 (2007). II The longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item. This Court first applied the doctrine in 19th-century cases addressing patent extensions on the Woodworth planing machine. Purchasers of licenses to sell and use the machine for the duration of the original patent term sought to continue using the licenses through the extended term. The Court held that the extension of the patent term did not affect the rights already secured by purchasers who bought the item for use "in the ordinary pursuits of life." Bloomer v. McQuewan, 14 How. 539, 549, 14 L. Ed. 532 (1853); see also ibid. ("[W]hen the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly"); Bloomer v. Millinger, 1 Wall. 340, 351, 17 L. Ed. 581 (1864). In Adams v. Burke, 17 Wall. 453, 21 L. Ed. 700 (1873), the Court affirmed the dismissal of a patent holder's suit alleging that a licensee had violated postsale restrictions on where patented coffin-lids could be used. "[W]here a person ha[s] purchased a patented machine of the patentee or his assignee," the Court held, "this purchase carrie[s] with it the right to the use of that machine so long as it [is] capable of use." Id., at 455. Although the Court permitted postsale restrictions on the use of a patented article in Henry v. A.B. Dick Co., 224 U.S. 1, 32 S. Ct. 364, 56 L. Ed. 645 (1912),[2] that *2116 decision was short lived. In 1913, the Court refused to apply A.B. Dick to uphold price-fixing provisions in a patent license. See Bauer & Cie v. O'Donnell, 229 U.S. 1, 14-17, 33 S. Ct. 616, 57 L. Ed. 1041 (1913). Shortly thereafter, in Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 518, 37 S. Ct. 416, 61 L. Ed. 871 (1917), the Court explicitly overruled A.B. Dick. In that case, a patent holder attempted to limit purchasers' use of its film projectors to show only film made under a patent held by the same company. The Court noted the "increasing frequency" with which patent holders were using A.B. Dick-style licenses to limit the use of their products and thereby using the patents to secure market control of related, unpatented items. 243 U.S., at 509, 516-517, 37 S. Ct. 416. Observing that "the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is `to promote the progress of science and useful arts,'" id., at 511, 37 S. Ct. 416 (quoting U.S. Const., Art. I, § 8, cl. 8), the Court held that "the scope of the grant which may be made to an inventor in a patent, pursuant to the [patent] statute, must be limited to the invention described in the claims of his patent." 243 U.S., at 511, 37 S. Ct. 416. Accordingly, it reiterated the rule that "the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it." Id., at 516, 37 S. Ct. 416. This Court most recently discussed patent exhaustion in Univis, 316 U.S. 241, 62 S. Ct. 1088, 86 L. Ed. 1408, on which the District Court relied. Univis Lens Company, the holder of patents on eyeglass lenses, licensed a purchaser to manufacture lens blanks[3] by fusing together different lens segments to create bi- and tri-focal lenses and to sell them to other Univis licensees at agreed-upon rates. Wholesalers were licensed to grind the blanks into the patented finished lenses, which they would then sell to Univis-licensed prescription retailers for resale at a fixed rate. Finishing retailers, after grinding the blanks into patented lenses, would sell the finished lenses to consumers at the same fixed rate. The United States sued Univis under the Sherman Act, 15 U.S.C. §§ 1, 3, 15, alleging unlawful restraints on trade. Univis asserted its patent monopoly rights as a defense to the antitrust suit. The Court granted certiorari to determine whether Univis' patent monopoly survived the sale of the lens blanks by the licensed manufacturer and therefore shielded Univis' pricing scheme from the Sherman Act. The Court assumed that the Univis patents containing claims for finished lenses were practiced in part by the wholesalers and finishing retailers who ground the blanks into lenses, and held that the sale of the lens blanks exhausted the patents on the finished lenses. Univis, 316 U.S., at 248-249, 62 S. Ct. 1088. The Court explained that the lens blanks "embodi[ed] essential features of the patented device and [were] without utility until . . . ground and polished as the finished lens of the patent." Id., at 249, 62 S. Ct. 1088. The Court noted that: "where one has sold an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it *2117 is or may be embodied in that particular article." Id., at 250-251, 62 S. Ct. 1088. In sum, the Court concluded that the traditional bar on patent restrictions following the sale of an item applies when the item sufficiently embodies the patent— even if it does not completely practice the patent—such that its only and intended use is to be finished under the terms of the patent. With this history of the patent exhaustion doctrine in mind, we turn to the parties' arguments. III A LGE argues that the exhaustion doctrine is inapplicable here because it does not apply to method claims, which are contained in each of the LGE Patents. LGE reasons that, because method patents are linked not to a tangible article but to a process, they can never be exhausted through a sale. Rather, practicing the patent—which occurs upon each use of an article embodying a method patent—is permissible only to the extent rights are transferred in an assignment contract. Quanta, in turn, argues that there is no reason to preclude exhaustion of method claims, and points out that both this Court and the Federal Circuit have applied exhaustion to method claims. It argues that any other rule would allow patent holders to avoid exhaustion entirely by inserting method claims in their patent specifications. Quanta has the better of this argument. Nothing in this Court's approach to patent exhaustion supports LGE's argument that method patents cannot be exhausted. It is true that a patented method may not be sold in the same way as an article or device, but methods nonetheless may be "embodied" in a product, the sale of which exhausts patent rights. Our precedents do not differentiate transactions involving embodiments of patented methods or processes from those involving patented apparatuses or materials. To the contrary, this Court has repeatedly held that method patents were exhausted by the sale of an item that embodied the method. In Ethyl Gasoline Corp. v. United States, 309 U.S. 436, 446, 457, 60 S. Ct. 618, 84 L. Ed. 852 (1940), for example, the Court held that the sale of a motor fuel produced under one patent also exhausted the patent for a method of using the fuel in combustion motors.[4] Similarly, as previously described, Univis held that the sale of optical lens blanks that partially practiced a patent exhausted the method patents that were not completely practiced until the blanks were ground into lenses. 316 U.S., at 248-251, 62 S. Ct. 1088. These cases rest on solid footing. Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine. Patentees seeking to avoid patent exhaustion could simply draft their patent claims to describe a method rather than an apparatus.[5] Apparatus and method *2118 claims "may approach each other so nearly that it will be difficult to distinguish the process from the function of the apparatus." United States ex rel. Steinmetz v. Allen, 192 U.S. 543, 559, 24 S. Ct. 416, 48 L. Ed. 555 (1904). By characterizing their claims as method instead of apparatus claims, or including a method claim for the machine's patented method of performing its task, a patent drafter could shield practically any patented item from exhaustion. This case illustrates the danger of allowing such an end-run around exhaustion. On LGE's theory, although Intel is authorized to sell a completed computer system that practices the LGE Patents, any downstream purchasers of the system could nonetheless be liable for patent infringement. Such a result would violate the longstanding principle that, when a patented item is "once lawfully made and sold, there is no restriction on [its] use to be implied for the benefit of the patentee." Adams, 17 Wall., at 457, 21 L. Ed. 700. We therefore reject LGE's argument that method claims, as a category, are never exhaustible. B We next consider the extent to which a product must embody a patent in order to trigger exhaustion. Quanta argues that, although sales of an incomplete article do not necessarily exhaust the patent in that article, the sale of the microprocessors and chipsets exhausted LGE's patents in the same way the sale of the lens blanks exhausted the patents in Univis. Just as the lens blanks in Univis did not fully practice the patents at issue because they had not been ground into finished lenses, Quanta observes, the Intel Products cannot practice the LGE Patents—or indeed, function at all—until they are combined with memory and buses in a computer system. If, as in Univis, patent rights are exhausted by the sale of the incomplete item, then LGE has no postsale right to require that the patents be practiced using only Intel parts. Quanta also argues that exhaustion doctrine will be a dead letter unless it is triggered by the sale of components that essentially, even if not completely, embody an invention. Otherwise, patent holders could authorize the sale of computers that are complete with the exception of one minor step—say, inserting the microprocessor into a socket— and extend their rights through each downstream purchaser all the way to the end user. LGE, for its part, argues that Univis is inapplicable here for three reasons. First, it maintains that Univis should be limited to products that contain all the physical aspects needed to practice the patent. On that theory, the Intel Products cannot embody the patents because additional physical components are required before the patents can be practiced. Second, LGE asserts that in Univis there was no "patentable distinction" between the lens blanks and the patented finished lenses since they were both subject to the same patent. Brief for Respondent 14 (citing Univis, supra, at 248-252, 62 S. Ct. 1088). In contrast, it describes the Intel Products as "independent and distinct products" from the systems using the LGE Patents and subject to "independent patents." Brief for Respondent 13. Finally, LGE argues that Univis does not apply because the Intel Products are analogous to individual elements of a combination patent, *2119 and allowing sale of those components to exhaust the patent would impermissibly "ascrib[e] to one element of the patented combination the status of the patented invention in itself." Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U.S. 336, 344-345, 81 S. Ct. 599, 5 L. Ed. 2d 592 (1961). We agree with Quanta that Univis governs this case. As the Court there explained, exhaustion was triggered by the sale of the lens blanks because their only reasonable and intended use was to practice the patent and because they "embodie[d] essential features of [the] patented invention." 316 U.S., at 249-251, 62 S. Ct. 1088. Each of those attributes is shared by the microprocessors and chipsets Intel sold to Quanta under the License Agreement. First, Univis held that "the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold." Id., at 249, 62 S. Ct. 1088. The lens blanks in Univis met this standard because they were "without utility until [they were] ground and polished as the finished lens of the patent." Ibid. Accordingly, "the only object of the sale [was] to enable the [finishing retailer] to grind and polish it for use as a lens by the prospective wearer." Ibid. Here, LGE has suggested no reasonable use for the Intel Products other than incorporating them into computer systems that practice the LGE Patents.[6] Nor can we can discern one: A microprocessor or chipset cannot function until it is connected to buses and memory. And here, as in Univis, the only apparent object of Intel's sales to Quanta was to permit Quanta to incorporate the Intel Products into computers that would practice the patents. Second, the lens blanks in Univis "embodie[d] essential features of [the] patented invention." Id., at 250-251, 62 S. Ct. 1088. The essential, or inventive, feature of the Univis lens patents was the fusing together of different lens segments to create bi- and tri-focal lenses. The finishing process performed by the finishing and prescription retailers after the fusing was not unique. As the United States explained: "The finishing licensees finish Univis lens blanks in precisely the same manner as they finish all other bifocal lens blanks. Indeed, appellees have never contended that their licensing system is supported by patents covering methods or processes relating to the finishing of lens blanks. Consequently, it appears that appellees perform all of the operations which contribute any claimed element of novelty to Univis lenses." Brief for United States in United States v. Univis Lens Co., O.T.1941, No. 855 et al., p. 10 (footnote and citations omitted). While the Court assumed that the finishing process was covered by the patents, Univis, supra, at 248-249, 62 S. Ct. 1088, and the District Court found that it was necessary to make a working lens, United States v. Univis Lens Co., 41 F. Supp. 258, 262-263 (S.D.N.Y.1941), the grinding process *2120 was not central to the patents. That standard process was not included in detail in any of the patents and was not referred to at all in two of the patents. Those that did mention the finishing process treated it as incidental to the invention, noting, for example, that "[t]he blank is then ground in the usual manner," U.S. Patent No. 1,876,497, p. 2, or simply that the blank is "then ground and polished," U.S. Patent No. 1,632,208, p. 1, Tr. of Record in United States v. Univis Lens Co., O.T.1941, No. 855 et al., pp. 516, 498. Like the Univis lens blanks, the Intel Products constitute a material part of the patented invention and all but completely practice the patent. Here, as in Univis, the incomplete article substantially embodies the patent because the only step necessary to practice the patent is the application of common processes or the addition of standard parts. Everything inventive about each patent is embodied in the Intel Products. They control access to main and cache memory, practicing the '641 and '379 patents by checking cache memory against main memory and comparing read and write requests. They also control priority of bus access by various other computer components under the '733 patent. Naturally, the Intel Products cannot carry out these functions unless they are attached to memory and buses, but those additions are standard components in the system, providing the material that enables the microprocessors and chipsets to function. The Intel Products were specifically designed to function only when memory or buses are attached; Quanta was not required to make any creative or inventive decision when it added those parts. Indeed, Quanta had no alternative but to follow Intel's specifications in incorporating the Intel Products into its computers because it did not know their internal structure, which Intel guards as a trade secret. Brief for Petitioners 3. Intel all but practiced the patent itself by designing its products to practice the patents, lacking only the addition of standard parts. We are unpersuaded by LGE's attempts to distinguish Univis. First, there is no reason to distinguish the two cases on the ground that the articles in Univis required the removal of material to practice the patent while the Intel Products require the addition of components to practice the patent. LGE characterizes the lens blanks and lenses as sharing a "basic nature" by virtue of their physical similarity, while the Intel Products embody only some of the "patentably distinct elements and steps" involved in the LGE Patents. Brief for Respondent 26-27. But we think that the nature of the final step, rather than whether it consists of adding or deleting material, is the relevant characteristic. In each case, the final step to practice the patent is common and noninventive: grinding a lens to the customer's prescription, or connecting a microprocessor or chipset to buses or memory. The Intel Products embody the essential features of the LGE Patents because they carry out all the inventive processes when combined, according to their design, with standard components. With regard to LGE's argument that exhaustion does not apply across patents, we agree on the general principle: The sale of a device that practices patent A does not, by virtue of practicing patent A, exhaust patent B. But if the device practices patent A while substantially embodying patent B, its relationship to patent A does not prevent exhaustion of patent B. For example, if the Univis lens blanks had been composed of shatter-resistant glass under patent A, the blanks would nonetheless have substantially embodied, and therefore exhausted, patent B for the finished lenses. This case is no different. *2121 While each Intel microprocessor and chipset practices thousands of individual patents, including some LGE patents not at issue in this case, the exhaustion analysis is not altered by the fact that more than one patent is practiced by the same product. The relevant consideration is whether the Intel Products that partially practice a patent—by, for example, embodying its essential features—exhaust that patent. Finally, LGE's reliance on Aro is misplaced because that case dealt only with the question whether replacement of one part of a patented combination infringes the patent. First, the replacement question is not at issue here. Second, and more importantly, Aro is not squarely applicable to the exhaustion of patents like the LGE Patents that do not disclose a new combination of existing parts. Aro described combination patents as "cover[ing] only the totality of the elements in the claim [so] that no element, separately viewed, is within the grant." 365 U.S., at 344, 81 S. Ct. 599; see also Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 667-668, 64 S. Ct. 268, 88 L. Ed. 376 (1944) (noting that, in a combination patent, "the combination is the invention and it is distinct from any" of its elements). Aro's warning that no element can be viewed as central to or equivalent to the invention is specific to the context in which the combination itself is the only inventive aspect of the patent. In this case, the inventive part of the patent is not the fact that memory and buses are combined with a microprocessor or chipset; rather, it is included in the design of the Intel Products themselves and the way these products access the memory or bus. C Having concluded that the Intel Products embodied the patents, we next consider whether their sale to Quanta exhausted LGE's patent rights. Exhaustion is triggered only by a sale authorized by the patent holder. Univis, 316 U.S., at 249, 62 S. Ct. 1088. LGE argues that there was no authorized sale here because the License Agreement does not permit Intel to sell its products for use in combination with non-Intel products to practice the LGE Patents. It cites General Talking Pictures Corp. v. Western Elec. Co., 304 U.S. 175, 58 S. Ct. 849, 82 L. Ed. 1273 (1938), and General Talking Pictures Corp. v. Western Elec. Co., 305 U.S. 124, 59 S. Ct. 116, 83 L. Ed. 81 (1938), in which the manufacturer sold patented amplifiers for commercial use, thereby breaching a license that limited the buyer to selling the amplifiers for private and home use. The Court held that exhaustion did not apply because the manufacturer had no authority to sell the amplifiers for commercial use, and the manufacturer "could not convey to petitioner what both knew it was not authorized to sell." General Talking Pictures, supra, at 181, 58 S. Ct. 849. LGE argues that the same principle applies here: Intel could not convey to Quanta what both knew it was not authorized to sell, i.e., the right to practice the patents with non-Intel parts. LGE overlooks important aspects of the structure of the Intel-LGE transaction. Nothing in the License Agreement restricts Intel's right to sell its microprocessors and chipsets to purchasers who intend to combine them with non-Intel parts. It broadly permits Intel to "`make, use, [or] sell'" products free of LGE's patent claims. Brief for Petitioners 8 (quoting App. 154). To be sure, LGE did require Intel to give notice to its customers, including Quanta, that LGE had not licensed those customers to practice its patents. But neither party contends that Intel breached the agreement in that respect. Brief for Petitioners 9; Brief for Respondent 9. In any event, the provision requiring *2122 notice to Quanta appeared only in the Master Agreement, and LGE does not suggest that a breach of that agreement would constitute a breach of the License Agreement. Hence, Intel's authority to sell its products embodying the LGE Patents was not conditioned on the notice or on Quanta's decision to abide by LGE's directions in that notice. LGE points out that the License Agreement specifically disclaimed any license to third parties to practice the patents by combining licensed products with other components. Brief for Petitioners 8. But the question whether third parties received implied licenses is irrelevant because Quanta asserts its right to practice the patents based not on implied license but on exhaustion. And exhaustion turns only on Intel's own license to sell products practicing the LGE Patents. Alternatively, LGE invokes the principle that patent exhaustion does not apply to postsale restrictions on "making" an article. Brief for Respondent 43. But this is simply a rephrasing of its argument that combining the Intel Products with other components adds more than standard finishing to complete a patented article. As explained above, making a product that substantially embodies a patent is, for exhaustion purposes, no different from making the patented article itself. In other words, no further "making" results from the addition of standard parts—here, the buses and memory—to a product that already substantially embodies the patent. The License Agreement authorized Intel to sell products that practiced the LGE Patents. No conditions limited Intel's authority to sell products substantially embodying the patents. Because Intel was authorized to sell its products to Quanta, the doctrine of patent exhaustion prevents LGE from further asserting its patent rights with respect to the patents substantially embodied by those products.[7] IV The authorized sale of an article that substantially embodies a patent exhausts the patent holder's rights and prevents the patent holder from invoking patent law to control postsale use of the article. Here, LGE licensed Intel to practice any of its patents and to sell products practicing those patents. Intel's microprocessors and chipsets substantially embodied the LGE Patents because they had no reasonable noninfringing use and included all the inventive aspects of the patented methods. Nothing in the License Agreement limited Intel's ability to sell its products practicing the LGE Patents. Intel's authorized sale to Quanta thus took its products outside the scope of the patent monopoly, and as a result, LGE can no longer assert its patent rights against Quanta. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered.

For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item. In this case, we decide whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods. The Court of Appeals for the Federal Circuit held that the doctrine does not apply to method patents at all and, in the alternative, that it does not apply here because the sales were not authorized by the license agreement. We disagree on both scores. Because the exhaustion doctrine applies to method patents, and because the license authorizes the sale of components that substantially embody the patents in suit, the sale exhausted the patents. I Respondent LG Electronics, Inc. (LGE), purchased a portfolio of computer technology patents in 1999, including the three patents at issue here: U.S. Patent Nos. 4,939,641 ('641); 5,379,379 ('379); and 5,077,733 ('733) (collectively LGE Patents). The main functions of a computer system are carried out on a microprocessor, or central processing unit, which interprets program instructions, processes data, and controls other devices in the system. A set of wires, or bus, connects the microprocessor to a chipset, which transfers data between the microprocessor and other devices, including the keyboard, mouse, monitor, hard drive, memory, and disk drives. The data processed by the computer are stored principally in random access memory, also called main memory. Webster's New World Dictionary of Computer Terms 334, 451 (8th ed.2000). Frequently accessed data are generally stored in cache memory, which permits faster access than main memory and is often located on the microprocessor itself. When copies of data are stored in both the cache and main memory, problems may arise when one copy is changed but the other still contains the original "stale" version of the data. J. Handy, Cache Memory Book 124 (2d ed.1993). The '641 patent addresses this problem. It discloses a system for ensuring that the most current data are retrieved from main memory by monitoring data requests and updating main memory from the cache when stale data are requested. LG Electronics, (C.A.Fed.2006). The '379 patent relates to the coordination of requests to read from, and write to, main memory. Processing these requests in chronological order can slow down a system because read requests are faster to execute than write requests. Processing all read requests first ensures speedy access, but may result in the retrieval of outdated data if a read request for a certain piece of data is processed before an outstanding write request for the same data. The '379 patent discloses an efficient method of organizing read and write requests while maintaining accuracy by allowing the computer to execute only read requests until it needs data for which there is an outstanding write request. LG Electronics, No. C 01-02187 CW et al., Order Construing Disputed Terms and Phrases, p. 42 (ND Cal., Aug. 20, 2002). Upon receiving such a read request, the computer executes pending write requests first and only then returns to the read requests so that the most up-to-date data are retrieved. The '733 patent addresses the problem of managing the data traffic on a bus connecting two computer components, so *2114 that no one device monopolizes the bus. It allows multiple devices to share the bus, giving heavy users greater access. This patent describes methods that establish a rotating priority system under which each device alternately has priority access to the bus for a preset number of cycles and heavier users can maintain priority for more cycles without "hogging" the device indefinitely. LGE licensed a patent portfolio, including the LGE Patents, to Intel Corporation (Intel). The cross-licensing agreement (License Agreement) permits Intel to manufacture and sell microprocessors and chipsets that use the LGE Patents (the Intel Products). The License Agreement authorizes Intel to "`make, use, sell (directly or indirectly), offer to sell, import or otherwise dispose of'" its own products practicing the LGE Patents. Brief for Petitioners 8 (quoting App. 154).[1] Notwithstanding this broad language, the License Agreement contains some limitations. Relevant here, it stipulates that no license "`is granted by either party hereto to any third party for the combination by a third party of Licensed Products of either party with items, components, or the like acquired from sources other than a party hereto, or for the use, import, offer for sale or sale of such combination.'" Brief for Petitioners 8 (quoting App. 164). The License Agreement purports not to alter the usual rules of patent exhaustion, however, providing that, "`[n]otwithstanding anything to the contrary contained in this Agreement, the parties agree that nothing herein shall in any way limit or alter the effect of patent exhaustion that would otherwise apply when a party hereto sells any of its Licensed Products.'" Brief for Petitioners 8 (quoting App. 164). In a separate agreement (Master Agreement), Intel agreed to give written notice to its own customers informing them that, while it had obtained a broad license "`ensur[ing] that any Intel product that you purchase is licensed by LGE and thus does not infringe any patent held by LGE,'" the license "`does not extend, expressly or by implication, to any product that you make by combining an Intel product with any non-Intel product.'" Brief for Respondent 9 (emphasis deleted) (quoting App. 198). The Master Agreement also provides that "`a breach of this Agreement shall have no effect on and shall not be grounds for termination of the Patent License.'" Brief for Petitioners 9 (quoting App. 176). Petitioners, including Quanta Computer (collectively Quanta), are a group of computer manufacturers. Quanta purchased microprocessors and chipsets from Intel and received the notice required by the Master Agreement. Nonetheless, Quanta manufactured computers using Intel parts in combination with non-Intel memory and buses in ways that practice the LGE Patents. Quanta does not modify the Intel components and follows Intel's specifications to incorporate the parts into its own systems. LGE filed a complaint against Quanta, asserting that the combination of the Intel Products with non-Intel memory and buses infringed the LGE Patents. The District Court granted summary judgment to Quanta, holding that, for purposes of the patent exhaustion doctrine, the license LGE granted to Intel resulted in forfeiture of any potential infringement actions *2115 against legitimate purchasers of the Intel Products. LG Electronics, (N.D.Cal.2002). The court found that, although the Intel Products do not fully practice any of the patents at issue, they have no reasonable noninfringing use and therefore their authorized sale exhausted patent rights in the completed computers under United In a subsequent order limiting its summary judgment ruling, the court held that patent exhaustion applies only to apparatus or composition-of-matter claims that describe a physical object, and does not apply to process, or method, claims that describe operations to make or use a product. LG Electronics, (N.D.Cal.2003). Because each of the LGE Patents includes method claims, exhaustion did not apply. The Court of Appeals for the Federal Circuit affirmed in part and reversed in part. It agreed that the doctrine of patent exhaustion does not apply to method claims. In the alternative, it concluded that exhaustion did not apply because LGE did not license Intel to sell the Intel Products to Quanta for use in combination with non-Intel We granted certiorari, 551 U.S. II The longstanding doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights to that item. This Court first applied the doctrine in 19th-century cases addressing patent extensions on the Woodworth planing machine. Purchasers of licenses to sell and use the machine for the duration of the original patent term sought to continue using the licenses through the extended term. The Court held that the extension of the patent term did not affect the rights already secured by purchasers who bought the item for use "in the ordinary pursuits of life." ; see also ; In the Court affirmed the dismissal of a patent holder's suit alleging that a licensee had violated postsale restrictions on where patented coffin-lids could be used. "[W]here a person ha[s] purchased a patented machine of the patentee or his assignee," the Court held, "this purchase carrie[s] with it the right to the use of that machine so long as it [is] capable of use." Although the Court permitted postsale restrictions on the use of a patented article in[2] that *2116 decision was short lived. In the Court refused to apply A.B. Dick to uphold price-fixing provisions in a patent license. See Bauer & Shortly thereafter, in Motion Picture Patents the Court explicitly overruled A.B. Dick. In that case, a patent holder attempted to limit purchasers' use of its film projectors to show only film made under a patent held by the same company. The Court noted the "increasing frequency" with which patent holders were using A.B. Dick-style licenses to limit the use of their products and thereby using the patents to secure market control of related, unpatented 516-517, Observing that "the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is `to promote the progress of science and useful arts,'" (quoting U.S. Const., Art. I, 8, cl. 8), the Court held that "the scope of the grant which may be made to an inventor in a patent, pursuant to the [patent] statute, must be limited to the invention described in the claims of his patent." 243 U.S., Accordingly, it reiterated the rule that "the right to vend is exhausted by a single, unconditional sale, the article sold being thereby carried outside the monopoly of the patent law and rendered free of every restriction which the vendor may attempt to put upon it." This Court most recently discussed patent exhaustion in on which the District Court relied. Lens Company, the holder of patents on eyeglass lenses, licensed a purchaser to manufacture lens blanks[3] by fusing together different lens segments to create bi- and tri-focal lenses and to sell them to other licensees at agreed-upon rates. Wholesalers were licensed to grind the blanks into the patented finished lenses, which they would then sell to -licensed prescription retailers for resale at a fixed rate. Finishing retailers, after grinding the blanks into patented lenses, would sell the finished lenses to consumers at the same fixed rate. The United States sued under the Sherman Act, 15 U.S.C. 1, 3, 15, alleging unlawful restraints on trade. asserted its patent monopoly rights as a defense to the antitrust suit. The Court granted certiorari to determine whether ' patent monopoly survived the sale of the lens blanks by the licensed manufacturer and therefore shielded ' pricing scheme from the Sherman Act. The Court assumed that the patents containing claims for finished lenses were practiced in part by the wholesalers and finishing retailers who ground the blanks into lenses, and held that the sale of the lens blanks exhausted the patents on the finished lenses. -249, The Court explained that the lens blanks "embodi[ed] essential features of the patented device and [were] without utility until ground and polished as the finished lens of the patent." The Court noted that: "where one has sold an uncompleted article which, because it embodies essential features of his patented invention, is within the protection of his patent, and has destined the article to be finished by the purchaser in conformity to the patent, he has sold his invention so far as it *2117 is or may be embodied in that particular article." In sum, the Court concluded that the traditional bar on patent restrictions following the sale of an item applies when the item sufficiently embodies the patent— even if it does not completely practice the patent—such that its only and intended use is to be finished under the terms of the patent. With this history of the patent exhaustion doctrine in mind, we turn to the parties' arguments. III A LGE argues that the exhaustion doctrine is inapplicable here because it does not apply to method claims, which are contained in each of the LGE Patents. LGE reasons that, because method patents are linked not to a tangible article but to a process, they can never be exhausted through a sale. Rather, practicing the patent—which occurs upon each use of an article embodying a method patent—is permissible only to the extent rights are transferred in an assignment contract. Quanta, in turn, argues that there is no reason to preclude exhaustion of method claims, and points out that both this Court and the Federal Circuit have applied exhaustion to method claims. It argues that any other rule would allow patent holders to avoid exhaustion entirely by inserting method claims in their patent specifications. Quanta has the better of this argument. Nothing in this Court's approach to patent exhaustion supports LGE's argument that method patents cannot be exhausted. It is true that a patented method may not be sold in the same way as an article or device, but methods nonetheless may be "embodied" in a product, the sale of which exhausts patent rights. Our precedents do not differentiate transactions involving embodiments of patented methods or processes from those involving patented apparatuses or materials. To the contrary, this Court has repeatedly held that method patents were exhausted by the sale of an item that embodied the method. In Ethyl Gasoline for example, the Court held that the sale of a motor fuel produced under one patent also exhausted the patent for a method of using the fuel in combustion motors.[4] Similarly, as previously described, held that the sale of optical lens blanks that partially practiced a patent exhausted the method patents that were not completely practiced until the blanks were ground into lenses. -251, These cases rest on solid footing. Eliminating exhaustion for method patents would seriously undermine the exhaustion doctrine. Patentees seeking to avoid patent exhaustion could simply draft their patent claims to describe a method rather than an apparatus.[5] Apparatus and method *2118 claims "may approach each other so nearly that it will be difficult to distinguish the process from the function of the apparatus." United States ex rel. By characterizing their claims as method instead of apparatus claims, or including a method claim for the machine's patented method of performing its task, a patent drafter could shield practically any patented item from exhaustion. This case illustrates the danger of allowing such an end-run around exhaustion. On LGE's theory, although Intel is authorized to sell a completed computer system that practices the LGE Patents, any downstream purchasers of the system could nonetheless be liable for patent infringement. Such a result would violate the longstanding principle that, when a patented item is "once lawfully made and sold, there is no restriction on [its] use to be implied for the benefit of the patentee." We therefore reject LGE's argument that method claims, as a category, are never exhaustible. B We next consider the extent to which a product must embody a patent in order to trigger exhaustion. Quanta argues that, although sales of an incomplete article do not necessarily exhaust the patent in that article, the sale of the microprocessors and chipsets exhausted LGE's patents in the same way the sale of the lens blanks exhausted the patents in Just as the lens blanks in did not fully practice the patents at issue because they had not been ground into finished lenses, Quanta observes, the Intel Products cannot practice the LGE Patents—or indeed, function at all—until they are combined with memory and buses in a computer system. If, as in patent rights are exhausted by the sale of the incomplete item, then LGE has no postsale right to require that the patents be practiced using only Intel parts. Quanta also argues that exhaustion doctrine will be a dead letter unless it is triggered by the sale of components that essentially, even if not completely, embody an invention. Otherwise, patent holders could authorize the sale of computers that are complete with the exception of one minor step—say, inserting the microprocessor into a socket— and extend their rights through each downstream purchaser all the way to the end user. LGE, for its part, argues that is inapplicable here for three reasons. First, it maintains that should be limited to products that contain all the physical aspects needed to practice the patent. On that theory, the Intel Products cannot embody the patents because additional physical components are required before the patents can be practiced. Second, LGE asserts that in there was no "patentable distinction" between the lens blanks and the patented finished lenses since they were both subject to the same patent. Brief for Respondent 14 (citing ). In contrast, it describes the Intel Products as "independent and distinct products" from the systems using the LGE Patents and subject to "independent patents." Brief for Respondent 13. Finally, LGE argues that does not apply because the Intel Products are analogous to individual elements of a combination patent, *2119 and allowing sale of those components to exhaust the patent would impermissibly "ascrib[e] to one element of the patented combination the status of the patented invention in itself." Aro Mfg. We agree with Quanta that governs this case. As the Court there explained, exhaustion was triggered by the sale of the lens blanks because their only reasonable and intended use was to practice the patent and because they "embodie[d] essential features of [the] patented invention." 316 U.S., -251, Each of those attributes is shared by the microprocessors and chipsets Intel sold to Quanta under the License Agreement. First, held that "the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold." The lens blanks in met this standard because they were "without utility until [they were] ground and polished as the finished lens of the patent." Accordingly, "the only object of the sale [was] to enable the [finishing retailer] to grind and polish it for use as a lens by the prospective wearer." Here, LGE has suggested no reasonable use for the Intel Products other than incorporating them into computer systems that practice the LGE Patents.[6] Nor can we can discern one: A microprocessor or chipset cannot function until it is connected to buses and memory. And here, as in the only apparent object of Intel's sales to Quanta was to permit Quanta to incorporate the Intel Products into computers that would practice the patents. Second, the lens blanks in "embodie[d] essential features of [the] patented invention." The essential, or inventive, feature of the lens patents was the fusing together of different lens segments to create bi- and tri-focal lenses. The finishing process performed by the finishing and prescription retailers after the fusing was not unique. As the United States explained: "The finishing licensees finish lens blanks in precisely the same manner as they finish all other bifocal lens blanks. Indeed, appellees have never contended that their licensing system is supported by patents covering methods or processes relating to the finishing of lens blanks. Consequently, it appears that appellees perform all of the operations which contribute any claimed element of novelty to lenses." Brief for United States in United O.T.1941, No. 855 et al., p. 10 (footnote and citations omitted). While the Court assumed that the finishing process was covered by the patents, and the District Court found that it was necessary to make a working lens, United (S.D.N.Y.1941), the grinding process *2120 was not central to the patents. That standard process was not included in detail in any of the patents and was not referred to at all in two of the patents. Those that did mention the finishing process treated it as incidental to the invention, noting, for example, that "[t]he blank is then ground in the usual manner," p. 2, or simply that the blank is "then ground and polished," p. 1, Tr. of Record in United O.T.1941, No. 855 et al., pp. 516, 498. Like the lens blanks, the Intel Products constitute a material part of the patented invention and all but completely practice the patent. Here, as in the incomplete article substantially embodies the patent because the only step necessary to practice the patent is the application of common processes or the addition of standard parts. Everything inventive about each patent is embodied in the Intel Products. They control access to main and cache memory, practicing the '641 and '379 patents by checking cache memory against main memory and comparing read and write requests. They also control priority of bus access by various other computer components under the '733 patent. Naturally, the Intel Products cannot carry out these functions unless they are attached to memory and buses, but those additions are standard components in the system, providing the material that enables the microprocessors and chipsets to function. The Intel Products were specifically designed to function only when memory or buses are attached; Quanta was not required to make any creative or inventive decision when it added those parts. Indeed, Quanta had no alternative but to follow Intel's specifications in incorporating the Intel Products into its computers because it did not know their internal structure, which Intel guards as a trade secret. Brief for Petitioners 3. Intel all but practiced the patent itself by designing its products to practice the patents, lacking only the addition of standard parts. We are unpersuaded by LGE's attempts to distinguish First, there is no reason to distinguish the two cases on the ground that the articles in required the removal of material to practice the patent while the Intel Products require the addition of components to practice the patent. LGE characterizes the lens blanks and lenses as sharing a "basic nature" by virtue of their physical similarity, while the Intel Products embody only some of the "patentably distinct elements and steps" involved in the LGE Patents. Brief for Respondent 26-27. But we think that the nature of the final step, rather than whether it consists of adding or deleting material, is the relevant characteristic. In each case, the final step to practice the patent is common and noninventive: grinding a lens to the customer's prescription, or connecting a microprocessor or chipset to buses or memory. The Intel Products embody the essential features of the LGE Patents because they carry out all the inventive processes when combined, according to their design, with standard components. With regard to LGE's argument that exhaustion does not apply across patents, we agree on the general principle: The sale of a device that practices patent A does not, by virtue of practicing patent A, exhaust patent B. But if the device practices patent A while substantially embodying patent B, its relationship to patent A does not prevent exhaustion of patent B. For example, if the lens blanks had been composed of shatter-resistant glass under patent A, the blanks would nonetheless have substantially embodied, and therefore exhausted, patent B for the finished lenses. This case is no different. *2121 While each Intel microprocessor and chipset practices thousands of individual patents, including some LGE patents not at issue in this case, the exhaustion analysis is not altered by the fact that more than one patent is practiced by the same product. The relevant consideration is whether the Intel Products that partially practice a patent—by, for example, embodying its essential features—exhaust that patent. Finally, LGE's reliance on Aro is misplaced because that case dealt only with the question whether replacement of one part of a patented combination infringes the patent. First, the replacement question is not at issue here. Second, and more importantly, Aro is not squarely applicable to the exhaustion of patents like the LGE Patents that do not disclose a new combination of existing parts. Aro described combination patents as "cover[ing] only the totality of the elements in the claim [so] that no element, separately viewed, is within the grant." Aro's warning that no element can be viewed as central to or equivalent to the invention is specific to the context in which the combination itself is the only inventive aspect of the patent. In this case, the inventive part of the patent is not the fact that memory and buses are combined with a microprocessor or chipset; rather, it is included in the design of the Intel Products themselves and the way these products access the memory or bus. C Having concluded that the Intel Products embodied the patents, we next consider whether their sale to Quanta exhausted LGE's patent rights. Exhaustion is triggered only by a sale authorized by the patent holder. 316 U.S., LGE argues that there was no authorized sale here because the License Agreement does not permit Intel to sell its products for use in combination with non-Intel products to practice the LGE Patents. It cites General Talking Pictures and General Talking Pictures in which the manufacturer sold patented amplifiers for commercial use, thereby breaching a license that limited the buyer to selling the amplifiers for private and home use. The Court held that exhaustion did not apply because the manufacturer had no authority to sell the amplifiers for commercial use, and the manufacturer "could not convey to petitioner what both knew it was not authorized to sell." General Talking Pictures, LGE argues that the same principle applies here: Intel could not convey to Quanta what both knew it was not authorized to sell, i.e., the right to practice the patents with non-Intel parts. LGE overlooks important aspects of the structure of the Intel-LGE transaction. Nothing in the License Agreement restricts Intel's right to sell its microprocessors and chipsets to purchasers who intend to combine them with non-Intel parts. It broadly permits Intel to "`make, use, [or] sell'" products free of LGE's patent claims. Brief for Petitioners 8 (quoting App. 154). To be sure, LGE did require Intel to give notice to its customers, including Quanta, that LGE had not licensed those customers to practice its patents. But neither party contends that Intel breached the agreement in that respect. Brief for Petitioners 9; Brief for Respondent 9. In any event, the provision requiring *2122 notice to Quanta appeared only in the Master Agreement, and LGE does not suggest that a breach of that agreement would constitute a breach of the License Agreement. Hence, Intel's authority to sell its products embodying the LGE Patents was not conditioned on the notice or on Quanta's decision to abide by LGE's directions in that notice. LGE points out that the License Agreement specifically disclaimed any license to third parties to practice the patents by combining licensed products with other components. Brief for Petitioners 8. But the question whether third parties received implied licenses is irrelevant because Quanta asserts its right to practice the patents based not on implied license but on exhaustion. And exhaustion turns only on Intel's own license to sell products practicing the LGE Patents. Alternatively, LGE invokes the principle that patent exhaustion does not apply to postsale restrictions on "making" an article. Brief for Respondent 43. But this is simply a rephrasing of its argument that combining the Intel Products with other components adds more than standard finishing to complete a patented article. As explained above, making a product that substantially embodies a patent is, for exhaustion purposes, no different from making the patented article itself. In other words, no further "making" results from the addition of standard parts—here, the buses and memory—to a product that already substantially embodies the patent. The License Agreement authorized Intel to sell products that practiced the LGE Patents. No conditions limited Intel's authority to sell products substantially embodying the patents. Because Intel was authorized to sell its products to Quanta, the doctrine of patent exhaustion prevents LGE from further asserting its patent rights with respect to the patents substantially embodied by those [7] IV The authorized sale of an article that substantially embodies a patent exhausts the patent holder's rights and prevents the patent holder from invoking patent law to control postsale use of the article. Here, LGE licensed Intel to practice any of its patents and to sell products practicing those patents. Intel's microprocessors and chipsets substantially embodied the LGE Patents because they had no reasonable noninfringing use and included all the inventive aspects of the patented methods. Nothing in the License Agreement limited Intel's ability to sell its products practicing the LGE Patents. Intel's authorized sale to Quanta thus took its products outside the scope of the patent monopoly, and as a result, LGE can no longer assert its patent rights against Quanta. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered.

Justice Rehnquist

majority

Schenck v. Pro-Choice Network of Western NY

1997-02-19

https://www.courtlistener.com/opinion/118085/schenck-v-pro-choice-network-of-western-ny/

https://www.courtlistener.com/api/rest/v3/clusters/118085/

1996-024

The question presented is whether an injunction that places restrictions on demonstrations outside abortion clinics violates the First Amendment. We uphold the provisions imposing "fixed bubble" or "fixed buffer zone" limitations, as hereinafter described, but hold that the provisions imposing "floating bubble" or "floating buffer zone" limitations violate the First Amendment. I Respondents include three doctors and four medical clinics (two of which are part of larger hospital complexes) in and around Rochester and Buffalo in upstate New York. These health care providers perform abortions and other medical services at their facilities. The eighth respondent is ProChoice Network of Western New York, a not-for-profit corporation *362 dedicated to maintaining access to family planning and abortion services. On September 24, 1990, respondents filed a complaint in the District Court for the Western District of New York against 50 individuals and 3 organizations—Operation Rescue, Project Rescue Western New York, and Project Life of Rochester. The complaint alleged that defendants had consistently engaged in illegal blockades and other illegal conduct at facilities in the Western District of New York where abortions were performed. (For convenience, we refer to these facilities as "clinics" throughout.) The complaint alleged one federal and six state causes of action: conspiracy to deprive women seeking abortions or other family planning services of the equal protection of the laws, in violation of Rev. Stat. § 1980, 42 U.S. C. § 1985(3); discrimination against and harassment of women seeking abortions and other family planning services, in violation of N. Y. Civ. Rights Law § 40—c (McKinney 1992) and N. Y. Exec. Law § 296 (McKinney 1993); trespass; tortious interference with business; tortious harassment; false imprisonment; and intentional infliction of emotional harm. The complaint alleged that a large blockade was planned for September 28, and requested that the court issue a temporary restraining order (TRO) to stop it. The complaint also sought a permanent injunction and damages. Before the complaint was filed, the clinics were subjected to numerous large-scale blockades in which protesters would march, stand, kneel, sit, or lie in parking lot driveways and in doorways. This conduct blocked or hindered cars from entering clinic parking lots, and patients, doctors, nurses, and other clinic employees from entering the clinics. In addition to these large-scale blockades, smaller groups of protesters consistently attempted to stop or disrupt clinic operations. Protesters trespassed onto clinic parking lots and even entered the clinics themselves. Those trespassers who remained outside the clinics crowded around cars or *363 milled around doorways and driveway entrances in an effort to block or hinder access to the clinics. Protesters sometimes threw themselves on top of the hoods of cars or crowded around cars as they attempted to turn into parking lot driveways. Other protesters on clinic property handed literature and talked to people entering the clinics—especially those women they believed were arriving to have abortions—in an effort to persuade them that abortion was immoral. Sometimes protesters used more aggressive techniques, with varying levels of belligerence: getting very close to women entering the clinics and shouting in their faces; surrounding, crowding, and yelling at women entering the clinics; or jostling, grabbing, pushing, and shoving women as they attempted to enter the clinics. Male and female clinic volunteers who attempted to escort patients past protesters into the clinics were sometimes elbowed, grabbed, or spit on. Sometimes the escorts pushed back. Some protesters remained in the doorways after the patients had entered the clinics, blocking others from entering and exiting. On the sidewalks outside the clinics, protesters called "sidewalk counselors" used similar methods. Counselors would walk alongside targeted women headed toward the clinics, handing them literature and talking to them in an attempt to persuade them not to get an abortion. Unfortunately, if the women continued toward the clinics and did not respond positively to the counselors, such peaceful efforts at persuasion often devolved into "in your face" yelling, and sometimes into pushing, shoving, and grabbing. Men who accompanied women attempting to enter the clinics often became upset by the aggressive sidewalk counseling and sometimes had to be restrained (not always successfully) from fighting with the counselors. The District Court found that the local police had been "unable to respond effectively" to the protests, for a number of reasons: the protests were constant, overwhelming police resources; when the police arrived, the protesters simply dispersed *364 and returned later; prosecution of arrested protesters was difficult because patients were often reluctant to cooperate for fear of making their identity public; and those who were convicted were not deterred from returning to engage in unlawful conduct. In addition, the court found that defendants harassed the police officers verbally and by mail, including the deputy police chief. Also harassed were people who testified against the protesters and "those who invoke[d] legal process against" the protesters. This, testified the deputy police chief, "made it more difficult for him to do his job." Pro-Choice Network of Western N. Y. v. Project Rescue Western N. Y., 799 F. Supp. 1417, 1426-1427 (WDNY 1992). See also id., at 1431 ("[T]here has been substantial uncontradicted evidence that defendants' activities are intended, and do in fact, prevent and hinder local police from protecting the right of women to choose to have an abortion"). On September 27, 1990, three days after respondents filed their complaint and one day before the scheduled large-scale blockade, the District Court issued a TRO. The parties stipulated that the TRO might remain in force until decision on respondents' motion for a preliminary injunction. In pertinent part, the TRO enjoined defendants from physically blockading the clinics, physically abusing or tortiously harassing anyone entering or leaving the clinics, and "demonstrating within 15 feet of any person" entering or leaving the clinics. As an exception to this 15-foot "buffer zone" around people, the TRO allowed two sidewalk counselors to have "a conversation of a nonthreatening nature" with individuals entering or leaving the clinic. If the individuals indicated that they did not want the counseling, however, the counselors had to "cease and desist" from counseling.[1] *365 At first, defendants complied with the TRO, holding a peaceful demonstration rather than the scheduled blockade. Subsequently, they stipulated that "physical blockades" could be enjoined, and they conducted no such blockades between the issuance of the TRO and the issuance of the preliminary injunction 17 months later. Defendants, however, continued to engage in protests that the District Court labeled "constructive blockades," as well as sidewalk counseling. Constructive blockades consisted of "demonstrating and picketing around the entrances of the clinics, and . . . harassing patients and staff entering and leaving the clinics." Id., at 1424. This included many of the protest elements described above, including attempts to intimidate or impede cars from entering the parking lots, congregating in driveway entrances, and crowding around, yelling at, grabbing, pushing, and shoving people entering and leaving the clinics. The purpose of constructive blockades was the same as physical blockades: "to prevent or dissuade patients from entering the clinic." Ibid. Clinic volunteer escorts testified that the protests were much quieter, calmer, and smaller during the first month after the TRO issued, but that the protests returned to their prior intensity thereafter, including aggressive sidewalk counseling with occasional shoving and elbowing, trespassing into clinic buildings to continue counseling of patients, and blocking of doorways and driveways. Alleging that Project Rescue and five individual defendants (including petitioner Schenck) breached the TRO on five separate occasions from late October 1990 through December 1990, respondents sought four contempt citations. A fifth contempt citation for a 1991 incident was sought against petitioner Schenck and another individual defendant. Throughout 1991 and into 1992, the District Court held 27 days of hearings in these contempt proceedings, and issued opinions *366 concluding that five of the six incidents justified a finding of civil contempt.[2] In February 1992, after hearing 12 additional days of testimony, the District Court issued the injunction, parts of which are challenged here. The relevant provisions are set forth in the margin.[3] Although the injunction largely *367 tracked the TRO, there were significant changes. First, while the TRO banned "demonstrating . . . within fifteen feet of any person" entering or leaving the clinics, the injunction more broadly banned "demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities" (fixed buffer zones), or "within fifteen feet of any person or vehicle seeking access to or leaving such facilities" (floating buffer zones). In addition, the injunction clarified the "cease and desist" provision, specifying that once sidewalk counselors who had entered the buffer zones were required to "cease and desist" their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones. In its opinion accompanying the preliminary injunction, the District Court stated the relevant inquiry as whether respondents had established (i) that they would be irreparably harmed if the injunction was not granted and (ii) that they were likely to succeed on the merits. The court held that the irreparable harm requirement was met, because "those women denied unimpeded access to [the clinics] cannot be compensated merely by money damages. Injunctive relief alone can assure women unimpeded access to [the] clinics." Id., at 1428. The court also held that respondents were likely to succeed on at least three of their claims. First, relying on New York State National Organization for *368 Women v. Terry, 886 F.2d 1339 (CA2 1989), cert. denied, 495 U.S. 947 (1990), the court held that women seeking abortions constituted a protected class under 42 U.S. C. § 1985(3), and that their constitutional right to travel between States and to choose to have an abortion was likely infringed by defendants, in violation of § 1985(3). Second, the court held that the same conduct that infringed this class of women's constitutional rights under § 1985(3) "clearly violates N. Y. Civ. Rights Law § 40—c."[4] 799 F. Supp., at 1431. Finally, the court held that in light of the "overwhelming evidence that defendants have repeatedly trespassed upon [the clinics'] property in the past and may continue to trespass in the future," respondents had shown a likelihood of success on their trespass claim. Id., at 1432. Having already found likelihood of success on these claims, the court chose not to address respondents' other four state-law claims. Id., at 1432, n. 11. *369 In analyzing defendants' assertion that the injunction violated their First Amendment right to free speech, the court applied our standard "time, place, and manner analysis," asking whether the speech restrictions in the injunction (i) were content neutral, (ii) were narrowly tailored to serve a significant government interest, and (iii) left open ample alternative channels for communication of the information. Id., at 1432 (citing Frisby v. Schultz, 487 U.S. 474, 481 (1988)). The court held that the injunction was content neutral because "it merely restricts the volume, location, timing and harassing and intimidating nature of defendants' expressive speech." 799 F. Supp., at 1433. The court held that the injunction served three significant governmental interests— public safety, ensuring that abortions are performed safely, and ensuring that a woman's constitutional rights to travel interstate and to choose to have an abortion were not sacrificed in the interest of defendants' First Amendment rights.[5] As to narrow tailoring, the court explained that the 15-foot buffer zones "around entrances and . . . around people and vehicles seeking access . . . are necessary to ensure that people and vehicles seeking access to the clinics will not be impeded, and will be able to determine readily where the entrances are located." Id., at 1434. The court added that the buffer zones would also provide the benefit of "prevent[ing] defendants from crowding patients and invading their personal space." Ibid. The court explained the "cease and desist" provision—allowing two sidewalk counselors inside the buffer zones but requiring them to "cease and desist" their counseling if the counselee asked to be left alone—as *370 "an exception" to the buffer zones and as "an attempt to accommodate fully defendants' First Amendment rights." Ibid. The court held that this provision was "necessary in order to protect the right of people approaching and entering the facilities to be left alone." Id., at 1435. Finally, the court held that the injunction left open ample alternative channels for communication, because defendants could still "picket, carry signs, pray, sing or chant in full view of people going into the clinics." Id., at 1437. After the District Court issued its opinion, we held in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993), that "women seeking an abortion" were not a protected class under 42 U.S. C. § 1985(3). In light of Bray, the District Court dismissed respondents' § 1985(3) claim, with leave to file an amended § 1985(3) cause of action. ProChoice Network of Western N. Y. v. Project Rescue Western N. Y., 828 F. Supp. 1018, 1025 (WDNY 1993). The court then decided to exercise pendent jurisdiction over respondents' remaining causes of action (the six state claims), regardless of the ultimate disposition of the § 1985(3) claim. In so deciding, the court noted that "the preliminary injunction is grounded not only on the § 1985(3) claim, but two state-law claims [the N. Y. Civ. Rights Law § 40—c claim and the trespass claim] as well." Id., at 1026, n. 4. The court explained that judicial economy, convenience, and fairness all suggested that it keep the case, since it had expended substantial resources on the case and its involvement in the case was ongoing. Id., at 1028-1029 (citing the contempt motions filed by respondents in 1990 and 1991, criminal contempt charges brought against six individuals for protests in 1992, and civil and criminal contempt motions filed in 1993). Petitioners, two individual defendants, appealed to the Court of Appeals for the Second Circuit. While the case was on appeal, we decided Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994), a case which also involved the effect of an injunction on the expressive activities of antiabortion *371 protesters. (We discuss Madsen in greater depth in Part II—A, infra. ) We held that "our standard time, place, and manner analysis is not sufficiently rigorous" when it comes to evaluating content-neutral injunctions that restrict speech. The test instead, we held, is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." 512 U.S., at 765. Applying Madsen, a panel of the Court of Appeals reversed the District Court in a split decision. 67 F.3d 359 (1994). The Court of Appeals then heard the case en banc, and affirmed the District Court by a divided vote. 67 F.3d 377 (1995). Each of two opinions garnered a majority of the court. Judge Oakes' lead opinion, joined by eight other judges, affirmed for reasons that closely track the reasoning of the District Court. Id., at 388-392. A concurring opinion by Judge Winter, joined by nine other judges, affirmed primarily on the ground that the protesters' expressive activities were not protected by the First Amendment at all, and because the District Court's injunction was a "reasonable response" to the protesters' conduct. Id., at 396, 398. We granted certiorari. 516 U.S. 1170 (1996). II A Petitioners challenge three aspects of the injunction: (i) the floating 15-foot buffer zones around people and vehicles seeking access to the clinics; (ii) the fixed 15-foot buffer zones around the clinic doorways, driveways, and parking lot entrances; and (iii) the "cease and desist" provision that forces sidewalk counselors who are inside the buffer zones to retreat 15 feet from the person being counseled once the person indicates a desire not to be counseled. Because Madsen bears many similarities to this case and because many of the parties' arguments depend on the application of Madsen here, we review our determination in that case. *372 A Florida state court had issued a permanent injunction enjoining specified organizations and individuals from blocking or interfering with clinic access and from physically abusing people entering or leaving the clinic. Six months after the injunction issued, the court found that protesters still impeded access by demonstrating on the street and in the driveways, and that sidewalk counselors approached entering vehicles in an effort to hand literature to the occupants. In the face of this evidence, the court issued a broader injunction that enjoined the defendant protesters from "`physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting' " anyone entering or leaving the clinic; from "`congregating, picketing, patrolling, demonstrating or entering that portion of public rightof-way or private property within [36] feet of the property line of the Clinic' "; from approaching anyone "`seeking the services of the Clinic' " who is within 300 feet of the clinic, unless the person "`indicates a desire to communicate' "; and from making any noise or displaying any image which could be heard or seen inside the clinic. 512 U.S., at 759-760. After determining that the injunction was not a prior restraint and was content neutral, id., at 762-764, we held that the proper test for evaluating content-neutral injunctions under the First Amendment was "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest," id., at 765. The Florida Supreme Court had concluded that the injunction was based on a number of governmental interests: protecting a woman's freedom to seek pregnancy-related services, ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting the medical privacy of patients whose psychological and physical well-being were threatened as they were held "captive" by medical circumstance. Id., at 767-768. We held that the combination of these interests was "quite sufficient to justify an appropriately tailored injunction" *373 to protect unimpeded access to the clinic by way of public streets and sidewalks. Id., at 768. We held that some of the injunction's provisions burdened more speech than necessary to serve these interests, and that others did not. We upheld the 36-foot buffer zone as applied to the street, sidewalks, and driveways "as a way of ensuring access to the clinic." We explained that the trial court had few other options to protect access to the clinic: Allowing protesters to remain on the sidewalks and in the clinic driveway was not a valid option because of their past conduct, and allowing them to stand in the street was obviously impractical. In addition, we stated that "some deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review." Id., at 769-770 (citing Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287, 294 (1941)). We struck down the 300-foot no-approach zone around the clinic, however, stating that it was difficult "to justify a prohibition on all uninvited approaches . . . regardless of how peaceful the contact may be . . . . Absent evidence that the protesters' speech is independently proscribable (i. e., `fighting words' or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Driv- ers, 312 U. S., at 292-293, this provision cannot stand. `As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' Boos v. Barry, 485 U. S. [312, 322 (1988)] (internal quotation marks omitted). The `consent' requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic." 512 U.S., at 774. *374 We now apply Madsen to the challenged provisions of the injunction and ask whether they burden more speech than necessary to serve a significant governmental interest.[6] B Petitioners first argue that there are no significant governmental interests that support the injunction. The argument goes as follows: Of the seven causes of action in respondents' complaint, the only one left standing after the District Court's most recent opinion is respondents' trespass claim; a trespass cause of action can support an injunction banning trespass, but nothing else; thus, the injunction's provisions banning "demonstrating" within 15 feet of people, cars, and entrances are overbroad. First, this argument is factually incorrect. The trespass claim is not the only one left standing at this point. In its opinion issuing the preliminary injunction, the District Court held that the conduct that satisfied the elements of a § 1985(3) claim under federal law also satisfied the elements of a § 40—c claim under state law. After our decision in Bray, the District Court dismissed respondents' § 1985(3) claim. Petitioners argue that in doing so, the District Court necessarily and implicitly dismissed the § 40—c claim as well, since the two claims were based on the same conduct. But our opinion in Bray did not attempt to construe any statute other than § 1985(3). And the fact that certain conduct does not state a claim under § 1985(3) does not necessarily mean that the same conduct does not state a claim under a state *375 law that uses the same or similar language as § 1985(3), since state courts may of course choose to construe their own law more broadly (or more narrowly) than its federal counterpart. In any event, the language of the two statutes is noticeably different. See n. 4, supra. Thus, the dismissal of the § 1985(3) claim in light of Bray did not also act as a dismissal of respondents' § 40—c claim. This is confirmed by the District Court's comment in its post-Bray opinion that "the preliminary injunction is grounded not only on the § 1985(3) claim, but two state-law claims as well." 828 F. Supp., at 1026, n. 4. Although petitioners contend that the § 40—c cause of action is no longer valid simply because the § 1985(3) claim is no longer valid, an argument we reject, they do not contend that the District Court erred in concluding as an independent matter that respondents were likely to succeed on their § 40—c and trespass claims. See Brief for Petitioners 32. The injunction's terms are clearly crafted to remedy these violations. An injunction tailored to respondents' claims for relief may nonetheless violate the First Amendment. In making their First Amendment challenge, petitioners focus solely on the interests asserted by respondents in their complaint. But in assessing a First Amendment challenge, a court looks not only at the private claims asserted in the complaint, but also inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. Madsen, 512 U. S., at 767-768; Milk Wagon Drivers, supra, at 294-295. Both the injunction in Madsen and the injunction here are supported by this governmental interest. In Madsen, it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks. 512 U.S., at 767-768. Here, the District Court cited public safety as one of the interests justifying the injunction—certainly a reasonable *376 conclusion, if only because of the dangerous situation created by the interaction between cars and protesters and because of the fights that threatened to (and sometimes did) develop. Even though the governmental interest in public safety is clearly a valid interest here, as it was in Madsen, plaintiffs in neither case pleaded a claim for "threat to public safety." Indeed, this would be a strange concept, since a plaintiff customarily alleges violations of private rights, while "public safety" expresses a public right enforced by the government through its criminal laws and otherwise. Thus, the fact that "threat to public safety" is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petitioners' First Amendment argument.[7] Given the factual similarity between this case and Madsen, we conclude that the governmental interests underlying the injunction in Madsen —ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services,[8]ibid. —also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics. *377 C We strike down the floating buffer zones around people entering and leaving the clinics because they burden more speech than is necessary to serve the relevant governmental interests. The floating buffer zones prevent defendants— except for two sidewalk counselors, while they are tolerated by the targeted individual—from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks. This is a broad prohibition, both because of the type of speech that is restricted and the nature of the location. Leafletting and commenting on matters of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum. See, e. g., Boos v. Barry, 485 U.S. 312, 322 (1988); United States v. Grace, 461 U.S. 171, 180 (1983). On the other hand, we have before us a record that shows physically abusive conduct, harassment of the police that hampered law enforcement, and the tendency of even peaceful conversations to devolve into aggressive and sometimes violent conduct. In some situations, a record of abusive conduct makes a prohibition on classic speech in limited parts of a public sidewalk permissible. See, e. g., Part II—D, infra; Madsen, supra, at 769-770. We need not decide whether the governmental interests involved would ever justify some sort of zone of separation between individuals entering the clinics and protesters, measured by the distance between the two. We hold here that because this broad prohibition on speech "floats," it cannot be sustained on this record. Since the buffer zone floats, protesters on the public sidewalks who wish (i) to communicate their message to an incoming or outgoing patient or clinic employee and (ii) to remain as close as possible (while maintaining an acceptable conversational distance) to this individual, must move as the *378 individual moves, maintaining 15 feet of separation. But this would be difficult to accomplish at, for instance, the GYN Womenservices clinic in Buffalo, one of the respondent clinics. The sidewalk outside the clinic is 17-feet wide. This means that protesters who wish to walk alongside an individual entering or leaving the clinic are pushed into the street, unless the individual walks a straight line on the outer edges of the sidewalk. Protesters could presumably walk 15 feet behind the individual, or 15 feet in front of the individual while walking backwards. But they are then faced with the problem of watching out for other individuals entering or leaving the clinic who are heading the opposite way from the individual they have targeted. With clinic escorts leaving the clinic to pick up incoming patients and entering the clinic to drop them off, it would be quite difficult for a protester who wishes to engage in peaceful expressive activities to know how to remain in compliance with the injunction.[9] This lack of certainty leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. That is, attempts to stand 15 feet from someone entering or leaving a clinic and to communicate a message—certainly protected on the face of the injunction—will be hazardous if one wishes to remain in compliance with the injunction.[10] Since there may well be other *379 ways to both effect such separation and yet provide certainty (so that speech protected by the injunction's terms is not burdened), we conclude that the floating buffer zones burden more speech than necessary to serve the relevant governmental interests. Because we strike down the floating buffer zones, we do not address the constitutionality of the "cease and desist" provision that allows sidewalk counselors within those buffer zones. *380 We likewise strike down the floating buffer zones around vehicles. Nothing in the record or the District Court's opinion contradicts the commonsense notion that a more limited injunction—which keeps protesters away from driveways and parking lot entrances (as the fixed buffer zones do) and off the streets, for instance—would be sufficient to ensure that drivers are not confused about how to enter the clinic and are able to gain access to its driveways and parking lots safely and easily. In contrast, the 15-foot floating buffer zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully. We therefore conclude that the floating buffer zones around vehicles burden more speech than necessary to serve the relevant governmental interests. D We uphold the fixed buffer zones around the doorways, driveways, and driveway entrances. These buffer zones are necessary to ensure that people and vehicles trying to enter or exit the clinic property or clinic parking lots can do so. As in Madsen, the record shows that protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots. Based on this conduct—both before and after the TRO issued—the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations away from the driveways and parking lot entrances. Similarly, sidewalk counselors—both before and after the TRO—followed and crowded people right up to the doorways of the clinics (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside. In addition, as the District Court found, defendants' harassment of the local police made it far from certain that the police would be able to quickly and effectively counteract protesters who blocked doorways *381 or threatened the safety of entering patients and employees. Based on this conduct, the District Court was entitled to conclude that protesters who were allowed close to the entrances would continue right up to the entrance, and that the only way to ensure access was to move all protesters away from the doorways.[11] Although one might quibble about whether 15 feet is too great or too small a distance if the goal is to ensure access, we defer to the District Court's reasonable assessment of the number of feet necessary to keep the entrances clear. See Madsen, 512 U. S., at 769-770 ("[S]ome deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review"). Petitioners claim that unchallenged provisions of the injunction are sufficient to ensure this access, pointing to the bans on trespassing, excessive noise, and "blocking, impeding or obstructing access to" the clinics. They claim that in light of these provisions, the only effect of a ban on "demonstrating" within the fixed buffer zone is "a ban on peaceful, nonobstructive demonstrations on public sidewalks or rights of way." Brief for Petitioners 47. This argument, however, ignores the record in this case. Based on defendants' past conduct, the District Court was entitled to conclude that some of the defendants who were allowed within 5 to 10 feet *382 of clinic entrances would not merely engage in stationary, nonobstructive demonstrations but would continue to do what they had done before: aggressively follow and crowd individuals right up to the clinic door and then refuse to move, or purposefully mill around parking lot entrances in an effort to impede or block the progress of cars. And because defendants' harassment of police hampered the ability of the police to respond quickly to a problem, a prophylactic measure was even more appropriate. Cf. Burson v. Freeman, 504 U.S. 191, 206-207 (1992) (upholding 100-foot "nocampaign zone" around polling places: "Intimidation and interference laws fall short of serving a State's compelling interests because they `deal with only the most blatant and specific attempts' to impede elections. Moreover, because law enforcement officers generally are barred [under state law] from the vicinity of the polls to avoid any appearance of coercion in the electoral process, many acts of interference would go undetected. These undetected or less than blatant acts may nonetheless drive the voter away before remedial action can be taken" (citations omitted)). The ban on "blocking, impeding, and obstructing access" was therefore insufficient by itself to solve the problem, and the fixed buffer zone was a necessary restriction on defendants' demonstrations. Petitioners also argue that under Madsen, the fixed buffer zones are invalid because the District Court could not impose a "speech-restrictive" injunction (or TRO) without first trying a "non-speech-restrictive" injunction, as the trial court did in Madsen. But in Madsen we simply stated that the failure of an initial injunction "to accomplish its purpose may be taken into consideration" in determining the constitutionality of a later injunction. 512 U.S., at 770. The fact that the District Court's TRO included a "speech-restrictive" provision certainly does not mean that the subsequent injunction is automatically invalid. Since we can uphold the *383 injunction under the Madsen standard without this "consideration" being present, petitioners' argument fails. Finally, petitioners make several arguments that may be quickly refuted. They argue that, unlike Madsen, there is "no extraordinary record of pervasive lawlessness," Brief for Petitioners 45, and that the buffer zones are therefore unnecessary. As explained above, our review of the record convinces us that defendants' conduct was indeed extraordinary, and that based on this conduct the District Court was entitled to conclude that keeping defendants away from the entrances was necessary to ensure access. Petitioners also argue that the term "demonstrating" is vague. When the injunction is read as a whole, see Grayned v. City of Rockford, 408 U.S. 104, 110 (1972), we believe that people "of ordinary intelligence" (and certainly defendants, whose demonstrations led to this litigation in the first place) have been given "a reasonable opportunity to know what is prohibited," id., at 108. Petitioners also contend that the "cease and desist" provision which limits the exception for sidewalk counselors in connection with the fixed buffer zone is contrary to the First Amendment. We doubt that the District Court's reason for including that provision—"to protect the right of the people approaching and entering the facilities to be left alone"— accurately reflects our First Amendment jurisprudence in this area. Madsen sustained an injunction designed to secure physical access to the clinic, but not on the basis of any generalized right "to be left alone" on a public street or sidewalk. As we said in Madsen, quoting from Boos v. Barry, 485 U. S., at 322, "`[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' " 512 U.S., at 774. But as earlier noted, the entire exception for sidewalk counselors was an effort to enhance *384 petitioners' speech rights, see n. 11, supra, and the "cease and desist" limitation must be assessed in that light.[12] Petitioners and some of their amici attack the "cease and desist" provision accompanying the exception for sidewalk counselors as content based, because it allows a clinic patient to terminate a protester's right to speak based on, among other reasons, the patient's disagreement with the message being conveyed. But in Madsen we held that the injunction in that case was not content based, even though it was directed only at abortion protesters, because it was only abortion protesters who had done the acts which were being enjoined. Here, the District Court found that "[m]any of the *385 `sidewalk counselors' and other defendants ha[d] been arrested on more than one occasion for harassment, yet persist in harassing and intimidating patients, patient escorts and medical staff." 799 F. Supp., at 1425. These counselors remain free to espouse their message outside the 15-foot buffer zone, and the condition on their freedom to espouse it within the buffer zone is the result of their own previous harassment and intimidation of patients.[13] * * * The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in part and dissenting in part. Instead of evaluating the injunction before us on the basis of the reasons for which it was issued, the Court today postulates other reasons that might have justified it and pronounces those never-determined reasons adequate. This is contrary to the settled practice governing appellate review of injunctions, and indeed of all actions committed by law to the initial factfinding, predictive and policy judgment of an entity other than the appellate court, see, e. g., SEC v. Chenery Corp., 318 U.S. 80 (1943). The Court's opinion also claims for the judiciary a prerogative I have never heard of: the power to render decrees that are in its view justified by concerns for public safety, though not justified by the need *386 to remedy the grievance that is the subject of the lawsuit. I dissent. I The most important holding in today's opinion is tucked away in the seeming detail of the "cease-and-desist" discussion in the penultimate paragraph of analysis: There is no right to be free of unwelcome speech on the public streets while seeking entrance to or exit from abortion clinics. Ante, at 383-384. "As we said in Madsen [v. Women's Health Center, Inc., 512 U.S. 753 (1994)], quoting from Boos v. Barry, 485 U. S., at 322, `[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' " Ante, at 383 (internal quotation marks omitted). But the District Court in this case (like the Court of Appeals) believed that there was such a right to be free of unwanted speech, and the validity of the District Court's action here under review cannot be assessed without taking that belief into account. That erroneous view of what constituted remediable harm shaped the District Court's injunction, and it is impossible to reverse on this central point yet maintain that the District Court framed its injunction to burden "no more speech than necessary," Madsen v. Women's Health Center, Inc., 512 U.S. 753, 765 (1994), to protect legitimate governmental interests. The District Court justified the "fixed buffer" provision of the injunction on two separate grounds, each apparently tied to a different feature of the provision. First, the court said, the fixed buffer zone was "necessary to ensure that people. . . seeking access to the clinics will not be impeded." ProChoice Network of Western New York v. Project Rescue Western New York, 799 F. Supp. 1417, 1434 (WDNY 1992). And second, "the `clear zones' will prevent defendants from crowding patients and invading their personal space." Ibid. Thus, the fixed buffer had a dual purpose: In order to prevent *387 physical obstruction of access, it excluded crowds of protesters from a 15-foot zone around clinic entrances, while permitting two nonobstructive "sidewalk counselors" to enter that zone. (Allowing a small number of protesters is a common practice in picketing injunctions, e. g., Mine Workers v. Bagwell, 512 U.S. 821, 823 (1994), and of course a required practice when no more than that is necessary, see Madsen, supra, at 765.) And the second purpose of the fixed buffer provision, the purpose that justified the requirement that even the two nonobstructive sidewalk counselors "cease and desist" if the "targeted person" did not wish to hear them, was to assure "personal space" on the public streets—or, as the District Court described it in the next paragraph of its order, "to protect the right of people approaching and entering the facilities to be left alone." 799 F. Supp., at 1435. The terms of the injunction's cease-and-desist provision make no attempt to conceal the fact that the supposed right to be left alone, and not the right of unobstructed access to clinics, was the basis for the provision: "[N]o one is required to accept or listen to sidewalk counseling, and . . . ifanyone or any group of persons who is sought to be counseled wants not to have coun- seling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that person or group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of [the injunction] pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility." Id., at 1440 (preliminary injunction, paragraph 1(c)) (emphasis added). It is difficult to imagine a provision more dependent upon the right to be free of unwanted speech that today's opinion rejects as applied to public streets. The District Court's *388 own explanation of the provision makes that dependency even more starkly clear: "Th[e] `cease and desist' provision is necessary in order to protect the right of people approaching and entering the facilities to be left alone. ". . . [Defendants] argue that, because their `sidewalk counseling' occurs on a public sidewalk, they cannot be forced to cease communicating their message just because their audience may be unwilling to hear it. The Court, however, rejects this argument. . . . . . ". . . The evidence adduced at the hearings clearly shows that, even when women seeking access to the clinics signal their desire to be left alone, defendants continue to follow right alongside them and persist in com- municating their message. [W]omen seeking access to plaintiffs' facilities cannot, as a practical matter, escape defendants' message. . . . ". . . [T]he . . . `cease and desist' provision advances the values of the marketplace of ideas by permitting listeners to exercise their autonomy to make their own determinations among competing ideas. Once a women seeking access to one of the clinics has made a determi- nation not to listen to defendants' message, defendants must respect her choice. " Id., at 1435-1436 (emphasis added). II The District Court thought the supposed "right to be left alone" central enough to its order to devote two full pages in the federal reports to the subject, ibid., and both majority opinions of the Court of Appeals discussed it in extenso, 67 F.3d 377, 391-393 (CA2 1995); id., at 395-397. The magic of today's opinion for this Court is that it renders this essential element of the injunction that was issued irrelevant by the simple device of approving instead an injunction that the *389 District Court (in the exercise of its discretion) chose not to issue—viz., an absolute ban on all protesters within the 15-foot zone. Ante, at 381, n. 11. The Court asserts (in carefully selected words) that "the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations." Ante, at 380 (emphasis added). And again: "[T]he District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct . . . would have been to keep the entire area clear of defendant protesters." Ante, at 381, n. 11 (emphasis added). And (lest the guarded terminology be thought accidental), yet a third time: "Based on [the defendants'] conduct, the District Court was entitled to conclude . . . that the only way to ensure access was to move all protesters away from the doorways." Ante, at 381 (first emphasis added; second in original). But prior to the question whether it was entitled to conclude that is the question whether it did conclude that. We are not in the business (or never used to be) of making up conclusions that the trial court could permissibly have reached on questions involving assessments of fact, credibility, and future conduct—and then affirming on the basis of those posited conclusions, whether the trial court in fact arrived at them or not.[1] That is so even in ordinary cases, but it is doubly true when we review a trial court's order imposing a prior restraint upon speech. As we said in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), when a court decides to impose a speech-restrictive injunction, the conclusions it reaches must be "supported by findings that adequately disclose the[ir] *390 evidentiary basis . . . ,that carefully identify the impact of [the defendants'] unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity." Id., at 933-934. The Court candidly concedes that the nonexistent "right to be left alone" underlay the District Court's imposition of the cease-and-desist provision. Ante, at 383. It appears not to grasp, however, the decisive import of this concession—which is that the District Court did not think it necessary to exclude all demonstrators from the buffer zone as a means of preventing physical obstruction of clinic entrances or other violations of law (other than the faux violation of intruding upon the speech targets' "private space"). Thus, the Court's statements about what "the District Court was entitled to conclude" are not only speculative (which is fatal enough) but positively contrary to the record of what the District Court did conclude—which was that permitting a few demonstrators within the buffer zone was perfectly acceptable, except when it would infringe the clinic employees' and patrons' right to be free of unwanted speech on public streets. In fact, the District Court expressly stated that if in the future it found that a complete ban on speech within the buffer zone were necessary, it would impose one. 799 F. Supp., at 1436, n. 13. I do not grasp the relevance of the Court's assertions that admitting the two counselors into the buffer zone was "an effort to enhance petitioners' speech rights," ante, at 383— 384, "an effort to bend over backwards to `accommodate' defendants' speech rights," ante, at 381, n. 11, and that "the `cease and desist' limitation must be assessed in that light," ante, at 384. If our First Amendment jurisprudence has stood for anything, it is that courts have an obligation "to enhance speech rights," and a duty "to bend over backwards to `accommodate' speech rights." That principle was reaffirmed in Madsen, which requires that a judicial injunction against speech burden "no more speech than necessary to *391 serve a significant government interest." 512 U.S., at 765 (emphasis added). Thus, if the situation confronting the District Court permitted "accommodation" of petitioners' speech rights, it demanded it. The Court's effort to recharacterize this responsibility of special care imposed by the First Amendment as some sort of judicial gratuity is perhaps the most alarming concept in an opinion that contains much to be alarmed about. III I disagree with the Court's facile rejection of the argument that no cause of action was properly found to support the present injunction. Petitioners contend that the only cause of action which could conceivably support the injunction is a trespass claim; but that cannot support the restrictions at issue, which are designed, as the District Court stated, to prevent obstruction of access and the invasion of "personal space," 799 F. Supp., at 1434, rather than to prevent trespass. The Court responds by pointing out that the case contains a nontrespass claim under N. Y. Civ. Rights Law § 40—c(2) (McKinney 1992), which provides that "[n]o person shall, because of . . . sex . . . be subjected to any discrimination in his civil rights, or to any harassment . . . in the exercise thereof, by any other person." That is true enough, but it seems to me clear that that imaginative state-law claim cannot support a preliminary injunction because it does not have a probability of success on the merits. See 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.3 (2d ed. 1995). It is, to put it mildly, far from apparent that seeking to prevent both men and women from aborting both male and female human fetuses constitutes discrimination on the basis of sex. Moreover, the reasoning which led the District Court to conclude otherwise has been specifically rejected by this Court. The District Court wrote: "Having demonstrated a likelihood of success on the merits of their federal § 1985(3) claim, plaintiffs have also, by definition, *392 demonstrated a likelihood of success on their claim under N. Y. Civ. Rights Law § 40—c." 799 F. Supp., at 1431. Subsequently, however, this Court's opinion in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269-273 (1993), held that claims of the sort at issue here do not constitute discrimination on the basis of sex under 42 U.S. C. § 1985(3). Since there is also, as far as I have been able to determine, no decision by any New York court saying that they constitute sex discrimination under § 40—c, there is no basis on which the District Court could have concluded (or this Court could affirm) that the chance of success on this claim was anything other than a long shot.[2] The Court proceeds from there to make a much more significant point: An injunction on speech may be upheld even if not justified on the basis of the interests asserted by the plaintiff, as long as it serves "public safety." "[I]n assessing a First Amendment challenge, a court . . . inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. . . . Here, the District Court cited public safety as one of the interests justifying the injunction . . . . [T]he fact that `threat to public safety' is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petitioners' First Amendment argument." Ante, at 375-376. This is a wonderful expansion of judicial power. Rather than courts' being limited to according relief justified by the *393 complaints brought before them, the Court today announces that a complaint gives them, in addition, ancillary power to decree what may be necessary to protect—not the plaintiff, but the public interest! Every private suit makes the district judge a sort of one-man Committee of Public Safety. There is no precedent for this novel and dangerous proposition. In Madsen, the Court says, "it was permissible to move protesters off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks." Ante, at 375; see also Madsen, 512 U. S., at 769. But acknowledging, as we did in Madsen, that some remedial options are eliminated because they conflict with considerations of public safety is entirely different from asserting, as the Court does today, that public safety can provide part of the justification for the remedy.[3] The only other case cited by the Court is Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287, 294-295 (1941). Ante, at 375. But Milk Wagon Drivers upheld an injunction against a union's intimidation of storekeepers, not because "the public interest" demanded it, but because the storekeepers were customers of the plaintiff dairy, which it was the purpose and effect of the intimidation to harm. 312 U.S., at 294-295. We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that branch is empowered, by invoking judicial action and by other means, to provide protection. But the Judicial Branch has hitherto been thought powerless to act except as invited by someone other than itself. That is one of the reasons it was thought to be "the least dangerous to the political rights of the [C]onstitution"—because *394 it "can take no active resolution whatever" and "may truly be said to have neither force nor will, but merely judgment." The Federalist No. 78, p. 396 (M. Beloff ed. 1987). It is contrary to the most fundamental principles of separation of powers for the District Court to decree measures that would eliminate obstruction of traffic, in a lawsuit which has established nothing more than trespass.[4] * * * Today's opinion makes a destructive inroad upon First Amendment law in holding that the validity of an injunction against speech is to be determined by an appellate court on the basis of what the issuing court might reasonably have found as to necessity, rather than on the basis of what it in fact found. And it makes a destructive inroad upon the separation of powers in holding that an injunction may contain measures justified by the public interest apart from remediation of the legal wrong that is the subject of the complaint. Insofar as the first point is concerned, the Court might properly have upheld the fixed buffer zone without the cease-and-desist provision, since the District Court evidently did conclude (with proper factual support, in my view) that limiting the protesters to two was necessary to prevent repetition *395 of the obstruction of access that had occurred in the past. But even that more limited injunction would be invalidated by the second point: the fact that no cause of action related to obstruction of access was properly found to support the injunction. Accordingly, I join Parts I, II—A, and II—C, but dissent from the Court's judgment upholding the fixed buffer zone, and would reverse the decision of the Court of Appeals in its entirety. Justice Breyer, concurring in part and dissenting in part. Words take on meaning from context. Considered in context, the preliminary injunction's language does not necessarily create the kind of "floating bubble" that leads the Court to find the injunction unconstitutionally broad. See Part II—C, ante. And until quite recently, no one thought that it did. The "floating bubble" controversy apparently arose during oral argument before the en banc Court of Appeals. The Court of Appeals then gave the District Judge, who has ongoing responsibility for administering the injunction, an initial opportunity to consider the petitioners' claim and, if necessary, to clarify or limit the relevant language. 67 F.3d 377, 389, n. 4 (CA2 1995) (en banc). The Court of Appeals' response, in my view, is both legally proper and sensible. I therefore would affirm its judgment. The preliminary injunction's key language prohibits demonstrating "within fifteen feet of any person or vehicle seeking access to or leaving such facilities." This language first appeared in the temporary restraining order (TRO), where it defined the precise scope of the order's prohibition against blocking "ingress into or egress from" facilities. That portion of the TRO enjoined the defendants from "trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility at which abortions are performed in the Western District of New York, including demonstrating within *396 15 feet of any person seeking access to or leaving such facilities . . . ." App. 23 (emphasis added). Before the District Court issued the TRO, Reverend Schenck asked whether this language would create a floating bubble. The District Court replied: "THE COURT: I don't think that was the intent. . . . [W]e're talking about . . . free access. . . . It's not a moving 15 feet. "REV. SCHENCK: So in other words, you're speaking of the facility itself? "THE COURT: I think that's what we were talking about . . . . We're talking fifteen feet from [e. g., a doorway] to go right out to where ever you're going. . . . [M]y gosh, you would never be able . . . to deal with that if it was a moving length. "It's fifteen feet from the entrance. . . . [Y]ou have to apply common sense . . . and [an interpretation of the language creating a moving zone] would not in any way at all be a fair interpretation of what we're talking about. "REV. SCHENCK: Well, I'm glad you pointed that out . . . . [T]here is, I think, a very high degree of ambiguity . . . and no one . . . said what we're talking about here is 15 feet from an entranceway. "THE COURT: I think everyone is clear on that now." App. to Reply Brief for Petitioners A-2 to A-3. The identical key language (with the added words "or vehicle") then found its way into the preliminary injunction, issued 16 months later, where its presence apparently remained subject to the "no-float" understanding that the District Court had called "clear." The preliminary injunction simply separated the key language from the words that had immediately preceded it in the TRO (the "trespassing on, sitting in, blocking . . . ingress into or egress from" language) *397 and it added a phrase that more specifically described the fixed zone as "fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances . . . ." There is little reason to believe that the District Court, in relettering the paragraphs or inserting this new phrase, thereby intended to give the key language a significantly different meaning or a new purpose other than its original purpose of narrowing through specification the broader "blocking . . . ingress" language, now appearing a little earlier on in the injunction. The District Court's reference, in an accompanying opinion, to "dual `clear zones' of fifteen feet around entrances and fifteen feet around people and vehicles seeking access," see ante, at 379, n. 10, by itself (and it is by itself) shows little, if anything, more than a "bubble" that surrounds an individual within or just beyond a fixed zone. In all other respects, given the presence of a new additional narrowing phrase—the phrase that speaks of, e. g., "fifteen feet from either side"—the key language at issue here would simply have become redundant. The District Court's and the parties' subsequent words and deeds suggest that the key language has had no significant independent injunctive life. The contempt motions and orders under the TRO, for example, refer to violations of a fixed 15-foot zone from entrances (though in one instance, after counsel repeated the District Court's "no moving zone" clarification (quoted supra, at 396), Record, Doc. No. 232, pp. 276-279, the court found that a "totality" of the defendant's conduct, which involved serious obstruction within "10 to 20 feet" of an entrance, violated two provisions of the TRO including the key language. See ante, at 379, n. 10; Record, Doc. No. 263, pp. 6, 8). The contempt motions and orders, however, say nothing about violations of a bubble floating outside the fixed entrance zones—though the facts suggest *398 that the contemnors would have violated such floating zones had the TRO called them into existence. Nor is there anything in the many District Court filings in respect to the preliminary injunction that suggests an intent to create a floating bubble of the sort contemplated by this Court. The diagrams that plaintiffs submitted to clarify the injunction's scope contain no reference to a floating zone. Rather, they are marked to indicate 15-foot fixed buffer zones from entrances to clinic property. See Appendix B, infra. In fact, at oral argument before the appeals court panel, counsel for the petitioners confirmed that the injunction's bubble did not "float" in the way contemplated by this Court. At that time an appeals court judge asked counsel (for the demonstrators) whether the 15-foot zone would apply after "someone leaves the abortion clinic and goes to a grocery store," perhaps "three miles away," and counsel replied as follows: "COUNSEL: I don't think that would [be] prohibit[ed] [by] the court's order. I think the court's order provides for a 15-foot setback or bubble zone around the clinic property . . . . "APPEALS COURT: Well, my question is to what extent can you . . . `leave' and still be subject to this injunction? "COUNSEL: Maybe I just didn't see the full implications of the injunction, but I never considered that beyond the 15-foot bubble zone there would be this same restriction. Even I'm not arguing that the injunction goes that far. Maybe I just didn't see that but I didn't interpret it that way." Not surprisingly, the appeals court's panel opinion did not mention floating bubbles. Nor did the parties mention the matter in subsequent District Court proceedings related to modifying or restoring the injunction—proceedings that took *399 place after the Court of Appeals' panel decision invalidating the injunction, but before the Court of Appeals heard the case en banc and reversed. At the latter time, apparently for the first time, the parties agreed that the injunction's language produced a zone that moved in some way or another. Given this posture, it is not surprising that the en banc Court of Appeals did not deny the existence of a floating bubble zone, but left the initial resolution of the floating bubble controversy to the District Court. The Court of Appeals addressed the parties' argument regarding what the court termed a "floating buffer"—an issue that had never been raised before—by holding that the "floating buffer" was permissible, 67 F.3d, at 389, on the assumption that the District Court would apply it in a constitutional manner, id., at 389, n. 4. Thus, the Court of Appeals did not definitively interpret the scope of the relevant language, but instead left it to the District Court to resolve in the first instance any linguistic ambiguity that might create a constitutional problem. In my view, this action by the Court of Appeals was appropriate, and this Court should do the same. Appellate courts do not normally consider claims that have not been raised first in the District Court. Singleton v. Wulff, 428 U.S. 106, 120 (1976) (citing Hormel v. Helvering, 312 U.S. 552, 556 (1941)). There is no good reason to depart from this ordinary principle here. The District Court understands the history, and thus the meaning, of the language in context better than do we. If the petitioners show a need for interpretation or modification of the language, the District Court, which is directly familiar with the facts underlying the injunction, can respond quickly and flexibly. An appellate decision is not immediately necessary because the key language in the injunction has not yet created, nor does it threaten to create, any significant practical difficulty. No defendant in *400 this case has been threatened with contempt for violating the ostensible floating bubble provision. Nor is there any realistic reason to believe that the provision will deter the exercise of constitutionally protected speech rights. I recognize that the District Court, interpreting or reinterpreting the key language, might find that it creates some kind of bubble that "floats," perhaps in the way I mention above. See supra, at 397. But even then, the constitutional validity of its interpretation would depend upon the specific interpretation that the court then gave and the potentially justifying facts. Some bubbles that "float" in time or space would seem to raise no constitutional difficulty. For example, a 15-foot buffer zone that is "fixed" in place around a doorway but that is activated only when a clinic patient is present can be said to "float" in time or, to a small degree, in space. See Appendix B, infra, Diagram 1 (Point X). Another example of a possibly constitutional "floating" bubble would be one that protects a patient who alights from a vehicle at the curbside in front of the Buffalo GYN Womenservices clinic and must cross the two-foot stretch of sidewalk that is outside the 15-foot fixed buffer. See Appendix B, infra, Diagram 2 (Point Y). Other bubbles, such as a bubble that follows a clinic patient to a grocery store three miles away, apparently are of no interest to anyone in this case. A floating bubble that follows a patient who is walking along the sidewalk just in front of a clinic, but outside the 15-foot fixed zone, could raise a constitutional problem. See Appendix B, infra, Diagram 3 (Point Z). But the constitutional validity of that kind of bubble should depend upon the particular clinic and the particular circumstances to which the District Court would point in justification. The Court of Appeals wisely recognized that these matters should be left in the first instance to the consideration of the District Court. In sum, ordinary principles of judicial administration would permit the District Court to deal with the petitioners' current objection. These principles counsel against this *401 Court's now offering its own interpretation of the injunction—an interpretation that is not obvious from the language and that has never been considered by the District Court. I do not see how the Court's review of the key language, in the absence of special need and in violation of those principles, can make the lower courts' difficult, ongoing, circumstance-specific task any easier. To the contrary, district judges cannot assure in advance, without the benefit of argument by the parties, that the language of complex, fact-based injunctions is free of every ambiguity that later interpretation or misinterpretation finds possible. And I see no special need here for the Court to make an apparently general statement about the law of "floating bubbles," which later developments may show to have been unnecessary or unwise. Hence, I join all but Part II—C of the Court's opinion. I would affirm the judgment of the Court of Appeals in its entirety. APPENDIX A TO OPINION OF BREYER, J. "TEMPORARY RESTRAINING ORDER "Upon hearing . . . it is hereby "ORDERED THAT Defendants, the officers, directors, agents, and representatives of defendants, and all other persons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual notice of this Order, are: "1. Temporarily enjoined and restrained in any manner or by any means from: "(a) trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility at which abortions are performed in the Western District of New York, including demonstrating within 15 feet of any person seeking access to or leaving such facilities, except that sidewalk counseling by no more than two persons as specified in paragraph (b) shall be allowed; *402 "(b) physically abusing or tortiously harassing persons entering or leaving, working at or using any services at any facility at which abortions are performed; Provided, however, that sidewalk counseling, consisting of a conversation of a nonthreatening nature by not more than two people with each person they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling and that if anyone who wants to, or who is sought to be counseled who wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event the persons seeking to counsel that person shall cease and desist from such counseling of that person. In addition, provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site; "(c) making any excessively loud sound which disturbs, injures, or endangers the health or safety of any patient or employee of a health care facility where abortions are performed in the Western District of New York, nor shall any person make such sounds which interferes with the rights of anyone not in violation of this Order; . . . ". . . and it is further "ORDERED that nothing in this Order shall be construed to limit Project Rescue participants' exercise of their legitimate First Amendment rights . . . ." App. 22-26 (emphasis added). "PRELIMINARY INJUNCTION "Upon consideration of the evidence introduced at a hearing . . . it is hereby "ORDERED that defendants, the officers, directors, agents, and representatives of defendants, and all other persons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual or constructive notice of this Order, are: *403 "11. Enjoined and restrained in any manner or by any means from: "(a) trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed in the Western District of New York; "(b) demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities, or within fifteen feet of any person or vehicle seeking access to or leaving such facilities, except that the form of demonstrating known as sidewalk counseling by no more than two persons as specified in paragraph (c) shall be allowed; "(c) physically abusing, grabbing, touching, pushing, shoving, or crowding persons entering or leaving, working at or using any services at any facility at which abortions are performed; provided, however, that sidewalk counseling consisting of a conversation of a non-threatening nature by not more than two people with each person or group of persons they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling, and that if anyone or any group of persons who is sought to be counseled wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all persons seeking to counsel that person or group of persons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of paragraph (b) pertaining to not demonstrating within fifteen feet of persons seeking access to or leaving a facility. In addition, it is further provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or *404 such reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site; "(d) using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee of a health care facility at which abortions are performed, nor shall any person make such sounds which interfere with the rights of anyone not in violation of this Order; ". . . and it is further "ORDERED that nothing in this Order shall be construed to limit defendants and those acting in concert with them from exercising their legitimate First Amendment rights. . . ." 799 F. Supp., at 1440-1441. *405 APPENDIX B TO OPINION OF BREYER, J. Diagram 1 Alexander Women's Group 220 Alexander Street, Ste. 300 Rochester, NY 14607 (part of Genesee Hospital Complex) *406 APPENDIX B TO OPINION OF BREYER, J. Diagram 2 Buffalo GYN Womenservices 1241 Main Street Buffalo, NY 14607 *407 APPENDIX B TO OPINION OF BREYER, J. Diagram 3 The Family Medicine Center 885 South Ave. Rochester, NY 14620 (part of Highland Hospital complex)

The question presented is whether an injunction that places restrictions on demonstrations outside abortion clinics violates the First Amendment. We uphold the provisions imposing "fixed bubble" or "fixed buffer zone" limitations, as hereinafter described, but hold that the provisions imposing "floating bubble" or "floating buffer zone" limitations violate the First Amendment. I Respondents include three doctors and four medical clinics (two of which are part of larger hospital complexes) in and around Rochester and Buffalo in upstate New York. These health care provid perform abortions and other medical services at their facilities. The eighth respondent is ProChoice Network of Western New York, a not-for-profit corporation *362 dedicated to maintaining access to family planning and abortion services. On September 2, 1990, respondents filed a complaint in the District Court for the Western District of New York against 50 individuals and 3 organizations—Operation Rescue, Project Rescue Western New York, and Project Life of Rochester. The complaint alleged that defendants had consistently engaged in illegal blockades and other illegal conduct at facilities in the Western District of New York where abortions were performed. (For convenience, we refer to these facilities as "clinics" throughout.) The complaint alleged one federal and six state causes of action: conspiracy to deprive women seeking abortions or other family planning services of the equal protection of the laws, in violation of Rev. Stat. 1980, 2 U.S. C. 1985(3); discrimination against and harassment of women seeking abortions and other family planning services, in violation of N. Y. Civ. Rights Law 0—c and N. Y. Exec. Law 296 ; trespass; tortious interference with business; tortious harassment; false imprisonment; and intentional infliction of emotional harm. The complaint alleged that a large blockade was planned for September 28, and requested that the court issue a temporary restraining order (TRO) to stop it. The complaint also sought a permanent injunction and damages. Before the complaint was filed, the clinics were subjected to numerous large-scale blockades in which protest would march, stand, kneel, sit, or lie in parking lot driveways and in doorways. This conduct blocked or hindered cars from entering clinic parking lots, and patients, doctors, nurses, and other clinic employees from entering the clinics. In addition to these large-scale blockades, smaller groups of protest consistently attempted to stop or disrupt clinic operations. Protest trespassed onto clinic parking lots and even entered the clinics themselves. Those trespass who remained outside the clinics crowded around cars or *363 milled around doorways and driveway entrances in an effort to block or hinder access to the clinics. Protest sometimes threw themselves on top of the hoods of cars or crowded around cars as they attempted to turn into parking lot driveways. Other protest on clinic property handed literature and talked to people entering the clinics—especially those women they believed were arriving to have abortions—in an effort to puade them that abortion was immoral. Sometimes protest used more aggressive techniques, with varying levels of belligerence: getting very close to women entering the clinics and shouting in their faces; surrounding, crowding, and yelling at women entering the clinics; or jostling, grabbing, pushing, and shoving women as they attempted to enter the clinics. Male and female clinic volunte who attempted to escort patients past protest into the clinics were sometimes elbowed, grabbed, or spit on. Sometimes the escorts pushed back. Some protest remained in the doorways after the patients had entered the clinics, blocking oth from entering and exiting. On the sidewalks outside the clinics, protest called "sidewalk counselors" used similar methods. Counselors would walk alongside targeted women headed toward the clinics, handing them literature and talking to them in an attempt to puade them not to get an abortion. Unfortunately, if the women continued toward the clinics and did not respond positively to the counselors, such peaceful efforts at puasion often devolved into "in your face" yelling, and sometimes into pushing, shoving, and grabbing. Men who accompanied women attempting to enter the clinics often became upset by the aggressive sidewalk counseling and sometimes had to be restrained (not always successfully) from fighting with the counselors. The District Court found that the local police had been "unable to respond effectively" to the protests, for a number of reasons: the protests were constant, overwhelming police resources; when the police arrived, the protest simply disped *36 and returned later; prosecution of arrested protest was difficult because patients were often reluctant to cooperate for fear of making their identity public; and those who were convicted were not deterred from returning to engage in unlawful conduct. In addition, the court found that defendants harassed the police offic verbally and by mail, including the deputy police chief. Also harassed were people who testified against the protest and "those who invoke[d] legal process against" the protest. This, testified the deputy police chief, "made it more difficult for him to do his job." Pro-Choice Network of Western N. See also On September 27, 1990, three days after respondents filed their complaint and one day before the scheduled large-scale blockade, the District Court issued a TRO. The parties stipulated that the TRO might remain in force until decision on respondents' motion for a preliminary injunction. In pertinent part, the TRO enjoined defendants from physically blockading the clinics, physically abusing or tortiously harassing anyone entering or leaving the clinics, and "demonstrating within 15 feet of any pon" entering or leaving the clinics. As an exception to this 15-foot "buffer zone" around people, the TRO allowed two sidewalk counselors to have "a convation of a nonthreatening nature" with individuals entering or leaving the clinic. If the individuals indicated that they did not want the counseling, however, the counselors had to "cease and desist" from counseling.[1] *365 At first, defendants complied with the TRO, holding a peaceful demonstration rather than the scheduled blockade. Subsequently, they stipulated that "physical blockades" could be enjoined, and they conducted no such blockades between the issuance of the TRO and the issuance of the preliminary injunction 17 months later. Defendants, however, continued to engage in protests that the District Court labeled "constructive blockades," as well as sidewalk counseling. Constructive blockades consisted of "demonstrating and picketing around the entrances of the clinics, and harassing patients and staff entering and leaving the clinics." This included many of the protest elements described above, including attempts to intimidate or impede cars from entering the parking lots, congregating in driveway entrances, and crowding around, yelling at, grabbing, pushing, and shoving people entering and leaving the clinics. The purpose of constructive blockades was the same as physical blockades: "to prevent or dissuade patients from entering the clinic." Clinic volunteer escorts testified that the protests were much quieter, calmer, and smaller during the first month after the TRO issued, but that the protests returned to their prior intensity thereafter, including aggressive sidewalk counseling with occasional shoving and elbowing, trespassing into clinic buildings to continue counseling of patients, and blocking of doorways and driveways. Alleging that Project Rescue and five individual defendants (including petitioner Schenck) breached the TRO on five separate occasions from late October 1990 through December 1990, respondents sought four contempt citations. A fifth contempt citation for a 1991 incident was sought against petitioner Schenck and another individual defendant. Throughout 1991 and into the District Court held 27 days of hearings in these contempt proceedings, and issued opinions *366 concluding that five of the six incidents justified a finding of civil contempt.[2] In February after hearing 12 additional days of testimony, the District Court issued the injunction, parts of which are challenged here. The relevant provisions are set forth in the margin.[3] Although the injunction largely *367 tracked the TRO, there were significant changes. First, while the TRO banned "demonstrating within fifteen feet of any pon" entering or leaving the clinics, the injunction more broadly banned "demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities" (fixed buffer zones), or "within fifteen feet of any pon or vehicle seeking access to or leaving such facilities" (floating buffer zones). In addition, the injunction clarified the "cease and desist" provision, specifying that once sidewalk counselors who had entered the buffer zones were required to "cease and desist" their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones. In its opinion accompanying the preliminary injunction, the District Court stated the relevant inquiry as whether respondents had established (i) that they would be irreparably harmed if the injunction was not granted and (ii) that they were likely to succeed on the merits. The court held that the irreparable harm requirement was met, because "those women denied unimpeded access to [the clinics] cannot be compensated merely by money damages. Injunctive relief alone can assure women unimpeded access to [the] clinics." The court also held that respondents were likely to succeed on at least three of their claims. First, relying on New York State National Organization for *368 cert. denied, the court held that women seeking abortions constituted a protected class under 2 U.S. C. 1985(3), and that their constitutional right to travel between States and to choose to have an abortion was likely infringed by defendants, in violation of 1985(3). Second, the court held that the same conduct that infringed this class of women's constitutional rights under 1985(3) "clearly violates N. Y. Civ. Rights Law 0—c."[] 799 F. Supp., Finally, the court held that in light of the "overwhelming evidence that defendants have repeatedly trespassed upon [the clinics'] property in the past and may continue to trespass in the future," respondents had shown a likelihood of success on their trespass claim. Having already found likelihood of success on these claims, the court chose not to address respondents' other four state-law claims. n. *369 In analyzing defendants' assertion that the injunction violated their First Amendment right to free speech, the court applied our standard "time, place, and manner analysis," asking whether the speech restrictions in the injunction (i) were content neutral, (ii) were narrowly tailored to serve a significant government interest, and (iii) left open ample alternative channels for communication of the information. ). The court held that the injunction was content neutral because "it merely restricts the volume, location, timing and harassing and intimidating nature of defendants' expressive speech." The court held that the injunction served three significant governmental interests— public safety, ensuring that abortions are performed safely, and ensuring that a woman's constitutional rights to travel inttate and to choose to have an abortion were not sacrificed in the interest of defendants' First Amendment rights.[5] As to narrow tailoring, the court explained that the 15-foot buffer zones "around entrances and around people and vehicles seeking access are necessary to ensure that people and vehicles seeking access to the clinics will not be impeded, and will be able to determine readily where the entrances are located." The court added that the buffer zones would also provide the benefit of "prevent[ing] defendants from crowding patients and invading their ponal space." The court explained the "cease and desist" provision—allowing two sidewalk counselors inside the buffer zones but requiring them to "cease and desist" their counseling if the counselee asked to be left alone—as *370 "an exception" to the buffer zones and as "an attempt to accommodate fully defendants' First Amendment rights." The court held that this provision was "necessary in order to protect the right of people approaching and entering the facilities to be left alone." Finally, the court held that the injunction left open ample alternative channels for communication, because defendants could still "picket, carry signs, pray, sing or chant in full view of people going into the clinics." After the District Court issued its opinion, we held in that "women seeking an abortion" were not a protected class under 2 U.S. C. 1985(3). In light of Bray, the District Court dismissed respondents' 1985(3) claim, with leave to file an amended 1985(3) cause of action. ProChoice Network of Western N. The court then decided to exercise pendent jurisdiction over respondents' remaining causes of action (the six state claims), regardless of the ultimate disposition of the 1985(3) claim. In so deciding, the court noted that "the preliminary injunction is grounded not only on the 1985(3) claim, but two state-law claims [the N. Y. Civ. Rights Law 0—c claim and the trespass claim] as well." The court explained that judicial economy, convenience, and fairness all suggested that it keep the case, since it had expended substantial resources on the case and its involvement in the case was ongoing. at 1028-1029 Petition, two individual defendants, appealed to the Court of Appeals for the Second Circuit. While the case was on appeal, we decided a case which also involved the effect of an injunction on the expressive activities of antiabortion *371 protest. (We discuss in greater depth in Part II—A, infra. ) We held that "our standard time, place, and manner analysis is not sufficiently rigorous" when it comes to evaluating content-neutral injunctions that restrict speech. The test instead, we held, is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest." Applying a panel of the Court of Appeals reved the District Court in a split decision. The Court of Appeals then heard the case en banc, and affirmed the District Court by a divided vote. Each of two opinions garnered a majority of the court. Judge Oakes' lead opinion, joined by eight other judges, affirmed for reasons that closely track the reasoning of the District Court. A concurring opinion by Judge Winter, joined by nine other judges, affirmed primarily on the ground that the protest' expressive activities were not protected by the First Amendment at all, and because the District Court's injunction was a "reasonable response" to the protest' conduct. We granted certiorari. II A Petition challenge three aspects of the injunction: (i) the floating 15-foot buffer zones around people and vehicles seeking access to the clinics; (ii) the fixed 15-foot buffer zones around the clinic doorways, driveways, and parking lot entrances; and (iii) the "cease and desist" provision that forces sidewalk counselors who are inside the buffer zones to retreat 15 feet from the pon being counseled once the pon indicates a desire not to be counseled. Because bears many similarities to this case and because many of the parties' arguments depend on the application of here, we review our determination in that case. *372 A Florida state court had issued a permanent injunction enjoining specified organizations and individuals from blocking or interfering with clinic access and from physically abusing people entering or leaving the clinic. Six months after the injunction issued, the court found that protest still impeded access by demonstrating on the street and in the driveways, and that sidewalk counselors approached entering vehicles in an effort to hand literature to the occupants. In the face of this evidence, the court issued a broader injunction that enjoined the defendant protest from "`physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting' " anyone entering or leaving the clinic; from "`congregating, picketing, patrolling, demonstrating or entering that portion of public rightof-way or private property within [36] feet of the property line of the Clinic' "; from approaching anyone "`seeking the services of the Clinic' " who is within 300 feet of the clinic, unless the pon "`indicates a desire to communicate' "; and from making any noise or displaying any image which could be heard or seen inside the clinic. -760. After determining that the injunction was not a prior restraint and was content neutral, we held that the proper test for evaluating content-neutral injunctions under the First Amendment was "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest," The Florida Supreme Court had concluded that the injunction was based on a number of governmental interests: protecting a woman's freedom to seek pregnancy-related services, ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting the medical privacy of patients whose psychological and physical well-being were threatened as they were held "captive" by medical circumstance. We held that the combination of these interests was "quite sufficient to justify an appropriately tailored injunction" *373 to protect unimpeded access to the clinic by way of public streets and sidewalks. We held that some of the injunction's provisions burdened more speech than necessary to serve these interests, and that oth did not. We upheld the 36-foot buffer zone as applied to the street, sidewalks, and driveways "as a way of ensuring access to the clinic." We explained that the trial court had few other options to protect access to the clinic: Allowing protest to remain on the sidewalks and in the clinic driveway was not a valid option because of their past conduct, and allowing them to stand in the street was obviously impractical. In addition, we stated that "some deference must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review." ). We struck down the 300-foot no-approach zone around the clinic, however, stating that it was difficult "to justify a prohibition on all uninvited approaches regardless of how peaceful the contact may be Absent evidence that the protest' speech is independently proscribable (i. e., `fighting words' or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Driv- -293, this provision cannot stand. `As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' 85 U. S. [312, ] (internal quotation marks omitted). The `consent' requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic." *37 We now apply to the challenged provisions of the injunction and ask whether they burden more speech than necessary to serve a significant governmental interest.[6] B Petition first argue that there are no significant governmental interests that support the injunction. The argument goes as follows: Of the seven causes of action in respondents' complaint, the only one left standing after the District Court's most recent opinion is respondents' trespass claim; a trespass cause of action can support an injunction banning trespass, but nothing else; thus, the injunction's provisions banning "demonstrating" within 15 feet of people, cars, and entrances are overbroad. First, this argument is factually incorrect. The trespass claim is not the only one left standing at this point. In its opinion issuing the preliminary injunction, the District Court held that the conduct that satisfied the elements of a 1985(3) claim under federal law also satisfied the elements of a 0—c claim under state law. After our decision in Bray, the District Court dismissed respondents' 1985(3) claim. Petition argue that in doing so, the District Court necessarily and implicitly dismissed the 0—c claim as well, since the two claims were based on the same conduct. But our opinion in Bray did not attempt to construe any statute other than 1985(3). And the fact that certain conduct does not state a claim under 1985(3) does not necessarily mean that the same conduct does not state a claim under a state *375 law that uses the same or similar language as 1985(3), since state courts may of course choose to construe their own law more broadly (or more narrowly) than its federal counterpart. In any event, the language of the two statutes is noticeably different. See n. Thus, the dismissal of the 1985(3) claim in light of Bray did not also act as a dismissal of respondents' 0—c claim. This is confirmed by the District Court's comment in its post-Bray opinion that "the preliminary injunction is grounded not only on the 1985(3) claim, but two state-law claims as well." 828 F. Supp., Although petition contend that the 0—c cause of action is no longer valid simply because the 1985(3) claim is no longer valid, an argument we reject, they do not contend that the District Court erred in concluding as an independent matter that respondents were likely to succeed on their 0—c and trespass claims. See Brief for Petition 32. The injunction's terms are clearly crafted to remedy these violations. An injunction tailored to respondents' claims for relief may nonetheless violate the First Amendment. In making their First Amendment challenge, petition focus solely on the interests asserted by respondents in their complaint. But in assessing a First Amendment challenge, a court looks not only at the private claims asserted in the complaint, but also inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. 512 U. S., ; Milk Wagon Driv, at -295. Both the injunction in and the injunction here are supported by this governmental interest. In it was to move protest off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks. 512 U.S., Here, the District Court cited public safety as one of the interests justifying the injunction—certainly a reasonable *376 conclusion, if only because of the dangerous situation created by the interaction between cars and protest and because of the fights that threatened to (and sometimes did) develop. Even though the governmental interest in public safety is clearly a valid interest here, as it was in plaintiffs in neither case pleaded a claim for "threat to public safety." Indeed, this would be a strange concept, since a plaintiff customarily alleges violations of private rights, while "public safety" expresses a public right enforced by the government through its criminal laws and otherwise. Thus, the fact that "threat to public safety" is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petition' First Amendment argument.[7] Given the factual similarity between this case and we conclude that the governmental interests underlying the injunction in —ensuring public safety and order, promoting the free flow of traffic on streets and sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related services,[8]ibid. —also underlie the injunction here, and in combination are certainly significant enough to justify an appropriately tailored injunction to secure unimpeded physical access to the clinics. *377 C We strike down the floating buffer zones around people entering and leaving the clinics because they burden more speech than is necessary to serve the relevant governmental interests. The floating buffer zones prevent defendants— except for two sidewalk counselors, while they are tolerated by the targeted individual—from communicating a message from a normal convational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks. This is a broad prohibition, both because of the type of speech that is restricted and the nature of the location. Leafletting and commenting on matt of public concern are classic forms of speech that lie at the heart of the First Amendment, and speech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum. See, e. g., 85 U.S. 312, ; United 61 U.S. 171, On the other hand, we have before us a record that shows physically abusive conduct, harassment of the police that hampered law enforcement, and the tendency of even peaceful convations to devolve into aggressive and sometimes violent conduct. In some situations, a record of abusive conduct makes a prohibition on classic speech in limited parts of a public sidewalk See, e. g., Part II—D, infra; We need not decide whether the governmental interests involved would ever justify some sort of zone of separation between individuals entering the clinics and protest, measured by the distance between the two. We hold here that because this broad prohibition on speech "floats," it cannot be sustained on this record. Since the buffer zone floats, protest on the public sidewalks who wish (i) to communicate their message to an incoming or outgoing patient or clinic employee and (ii) to remain as close as possible (while maintaining an acceptable convational distance) to this individual, must move as the *378 individual moves, maintaining 15 feet of separation. But this would be difficult to accomplish at, for instance, the GYN Womenservices clinic in Buffalo, one of the respondent clinics. The sidewalk outside the clinic is 17-feet wide. This means that protest who wish to walk alongside an individual entering or leaving the clinic are pushed into the street, unless the individual walks a straight line on the outer edges of the sidewalk. Protest could presumably walk 15 feet behind the individual, or 15 feet in front of the individual while walking backwards. But they are then faced with the problem of watching out for other individuals entering or leaving the clinic who are heading the opposite way from the individual they have targeted. With clinic escorts leaving the clinic to pick up incoming patients and entering the clinic to drop them off, it would be quite difficult for a protester who wishes to engage in peaceful expressive activities to know how to remain in compliance with the injunction.[9] This lack of certainty leads to a substantial risk that much more speech will be burdened than the injunction by its terms prohibits. That is, attempts to stand 15 feet from someone entering or leaving a clinic and to communicate a message—certainly protected on the face of the injunction—will be hazardous if one wishes to remain in compliance with the injunction.[10] Since there may well be other *379 ways to both effect such separation and yet provide certainty (so that speech protected by the injunction's terms is not burdened), we conclude that the floating buffer zones burden more speech than necessary to serve the relevant governmental interests. Because we strike down the floating buffer zones, we do not address the constitutionality of the "cease and desist" provision that allows sidewalk counselors within those buffer zones. *380 We likewise strike down the floating buffer zones around vehicles. Nothing in the record or the District Court's opinion contradicts the commonsense notion that a more limited injunction—which keeps protest away from driveways and parking lot entrances (as the fixed buffer zones do) and off the streets, for instance—would be sufficient to ensure that driv are not confused about how to enter the clinic and are able to gain access to its driveways and parking lots safely and easily. In contrast, the 15-foot floating buffer zones would restrict the speech of those who simply line the sidewalk or curb in an effort to chant, shout, or hold signs peacefully. We therefore conclude that the floating buffer zones around vehicles burden more speech than necessary to serve the relevant governmental interests. D We uphold the fixed buffer zones around the doorways, driveways, and driveway entrances. These buffer zones are necessary to ensure that people and vehicles trying to enter or exit the clinic property or clinic parking lots can do so. As in the record shows that protest purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots. Based on this conduct—both before and after the TRO issued—the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations away from the driveways and parking lot entrances. Similarly, sidewalk counselors—both before and after the TRO—followed and crowded people right up to the doorways of the clinics (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside. In addition, as the District Court found, defendants' harassment of the local police made it far from certain that the police would be able to quickly and effectively counteract protest who blocked doorways *381 or threatened the safety of entering patients and employees. Based on this conduct, the District Court was entitled to conclude that protest who were allowed close to the entrances would continue right up to the entrance, and that the only way to ensure access was to move all protest away from the doorways.[] Although one might quibble about whether 15 feet is too great or too small a distance if the goal is to ensure access, we defer to the District Court's reasonable assessment of the number of feet necessary to keep the entrances clear. See 512 U. S., Petition claim that unchallenged provisions of the injunction are sufficient to ensure this access, pointing to the bans on trespassing, excessive noise, and "blocking, impeding or obstructing access to" the clinics. They claim that in light of these provisions, the only effect of a ban on "demonstrating" within the fixed buffer zone is "a ban on peaceful, nonobstructive demonstrations on public sidewalks or rights of way." Brief for Petition 7. This argument, however, ignores the record in this case. Based on defendants' past conduct, the District Court was entitled to conclude that some of the defendants who were allowed within 5 to 10 feet *382 of clinic entrances would not merely engage in stationary, nonobstructive demonstrations but would continue to do what they had done before: aggressively follow and crowd individuals right up to the clinic door and then refuse to move, or purposefully mill around parking lot entrances in an effort to impede or block the progress of cars. And because defendants' harassment of police hampered the ability of the police to respond quickly to a problem, a prophylactic measure was even more appropriate. Cf. 50 U.S. 191, (upholding 100-foot "nocampaign zone" around polling places: "Intimidation and interference laws fall short of serving a State's compelling interests because they `deal with only the most blatant and specific attempts' to impede elections. Moreover, because law enforcement offic generally are barred [under state law] from the vicinity of the polls to avoid any appearance of coercion in the electoral process, many acts of interference would go undetected. These undetected or less than blatant acts may nonetheless drive the voter away before remedial action can be taken" (citations omitted)). The ban on "blocking, impeding, and obstructing access" was therefore insufficient by itself to solve the problem, and the fixed buffer zone was a necessary restriction on defendants' demonstrations. Petition also argue that under the fixed buffer zones are invalid because the District Court could not impose a "speech-restrictive" injunction (or TRO) without first trying a "non-speech-restrictive" injunction, as the trial court did in But in we simply stated that the failure of an initial injunction "to accomplish its purpose may be taken into consideration" in determining the constitutionality of a later injunction. The fact that the District Court's TRO included a "speech-restrictive" provision certainly does not mean that the subsequent injunction is automatically invalid. Since we can uphold the *383 injunction under the standard without this "consideration" being present, petition' argument fails. Finally, petition make several arguments that may be quickly refuted. They argue that, unlike there is "no extraordinary record of pervasive lawlessness," Brief for Petition 5, and that the buffer zones are therefore unnecessary. As explained above, our review of the record convinces us that defendants' conduct was indeed extraordinary, and that based on this conduct the District Court was entitled to conclude that keeping defendants away from the entrances was necessary to ensure access. Petition also argue that the term "demonstrating" is vague. When the injunction is read as a whole, see 08 U.S. 10, we believe that people "of ordinary intelligence" (and certainly defendants, whose demonstrations led to this litigation in the first place) have been given "a reasonable opportunity to know what is prohibited," Petition also contend that the "cease and desist" provision which limits the exception for sidewalk counselors in connection with the fixed buffer zone is contrary to the First Amendment. We doubt that the District Court's reason for including that provision—"to protect the right of the people approaching and entering the facilities to be left alone"— accurately reflects our First Amendment jurisprudence in this area. sustained an injunction designed to secure physical access to the clinic, but not on the basis of any generalized right "to be left alone" on a public street or sidewalk. As we said in quoting from 85 U. S., at "`[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' " But as earlier noted, the entire exception for sidewalk counselors was an effort to enhance *38 petition' speech rights, see n. and the "cease and desist" limitation must be assessed in that light.[12] Petition and some of their amici attack the "cease and desist" provision accompanying the exception for sidewalk counselors as content based, because it allows a clinic patient to terminate a protester's right to speak based on, among other reasons, the patient's disagreement with the message being conveyed. But in we held that the injunction in that case was not content based, even though it was directed only at abortion protest, because it was only abortion protest who had done the acts which were being enjoined. Here, the District Court found that "[m]any of the *385 `sidewalk counselors' and other defendants ha[d] been arrested on more than one occasion for harassment, yet pist in harassing and intimidating patients, patient escorts and medical staff." 799 F. Supp., at 125. These counselors remain free to espouse their message outside the 15-foot buffer zone, and the condition on their freedom to espouse it within the buffer zone is the result of their own previous harassment and intimidation of patients.[13] * * * The judgment of the Court of Appeals is affirmed in part and reved in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in part and dissenting in part. Instead of evaluating the injunction before us on the basis of the reasons for which it was issued, the Court today postulates other reasons that might have justified it and pronounces those never-determined reasons adequate. This is contrary to the settled practice governing appellate review of injunctions, and indeed of all actions committed by law to the initial factfinding, predictive and policy judgment of an entity other than the appellate court, see, e. g., (193). The Court's opinion also claims for the judiciary a prerogative I have never heard of: the power to render decrees that are in its view justified by concerns for public safety, though not justified by the need *386 to remedy the grievance that is the subject of the lawsuit. I dissent. I The most important holding in today's opinion is tucked away in the seeming detail of the "cease-and-desist" discussion in the penultimate paragraph of analysis: There is no right to be free of unwelcome speech on the public streets while seeking entrance to or exit from abortion clinics. Ante, at 383-38. "As we said in [v. Women's Health Center, Inc., ], quoting from 85 U. S., at `[a]s a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.' " Ante, at 383 (internal quotation marks omitted). But the District Court in this case (like the Court of Appeals) believed that there was such a right to be free of unwanted speech, and the validity of the District Court's action here under review cannot be assessed without taking that belief into account. That erroneous view of what constituted remediable harm shaped the District Court's injunction, and it is impossible to reve on this central point yet maintain that the District Court framed its injunction to burden "no more speech than necessary," to protect legitimate governmental interests. The District Court justified the "fixed buffer" provision of the injunction on two separate grounds, each apparently tied to a different feature of the provision. First, the court said, the fixed buffer zone was "necessary to ensure that people. seeking access to the clinics will not be impeded." ProChoice Network of Western New 13 And second, "the `clear zones' will prevent defendants from crowding patients and invading their ponal space." Thus, the fixed buffer had a dual purpose: In order to prevent *387 physical obstruction of access, it excluded crowds of protest from a 15-foot zone around clinic entrances, while permitting two nonobstructive "sidewalk counselors" to enter that zone. and of course a required practice when no more than that is necessary, see) And the second purpose of the fixed buffer provision, the purpose that justified the requirement that even the two nonobstructive sidewalk counselors "cease and desist" if the "targeted pon" did not wish to hear them, was to assure "ponal space" on the public streets—or, as the District Court described it in the next paragraph of its order, "to protect the right of people approaching and entering the facilities to be left alone." 799 F. Supp., The terms of the injunction's cease-and-desist provision make no attempt to conceal the fact that the supposed right to be left alone, and not the right of unobstructed access to clinics, was the basis for the provision: "[N]o one is required to accept or listen to sidewalk counseling, and ifanyone or any group of pons who is sought to be counseled wants not to have coun- seling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all pons seeking to counsel that pon or group of pons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of [the injunction] pertaining to not demonstrating within fifteen feet of pons seeking access to or leaving a facility." at 10 It is difficult to imagine a provision more dependent upon the right to be free of unwanted speech that today's opinion rejects as applied to public streets. The District Court's *388 own explanation of the provision makes that dependency even more starkly clear: "Th[e] `cease and desist' provision is necessary in order to protect the right of people approaching and entering the facilities to be left alone. ". [Defendants] argue that, because their `sidewalk counseling' occurs on a public sidewalk, they cannot be forced to cease communicating their message just because their audience may be unwilling to hear it. The Court, however, rejects this argument. ". The evidence adduced at the hearings clearly shows that, even when women seeking access to the clinics signal their desire to be left alone, defendants continue to follow right alongside them and pist in com- municating their message. [W]omen seeking access to plaintiffs' facilities cannot, as a practical matter, escape defendants' message. ". [T]he `cease and desist' provision advances the values of the marketplace of ideas by permitting listen to exercise their autonomy to make their own determinations among competing ideas. Once a women seeking access to one of the clinics has made a determi- nation not to listen to defendants' message, defendants must respect her choice. " -136 II The District Court thought the supposed "right to be left alone" central enough to its order to devote two full pages in the federal reports to the subject, ib and both majority opinions of the Court of Appeals discussed it in extenso, ; The magic of today's opinion for this Court is that it rend this essential element of the injunction that was issued irrelevant by the simple device of approving instead an injunction that the *389 District Court (in the exercise of its discretion) chose not to issue—viz., an absolute ban on all protest within the 15-foot zone. Ante, at 381, n. The Court asserts (in carefully selected words) that "the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations." Ante, at 380 And again: "[T]he District Court was entitled to conclude on this record that the only feasible way to shield individuals within the fixed buffer zone from unprotected conduct would have been to keep the entire area clear of defendant protest." Ante, at 381, n. And (lest the guarded terminology be thought accidental), yet a third time: "Based on [the defendants'] conduct, the District Court was entitled to conclude that the only way to ensure access was to move all protest away from the doorways." Ante, at 381 (first emphasis added; second in original). But prior to the question whether it was entitled to conclude that is the question whether it did conclude that. We are not in the business (or never used to be) of making up conclusions that the trial court could permissibly have reached on questions involving assessments of fact, credibility, and future conduct—and then affirming on the basis of those posited conclusions, whether the trial court in fact arrived at them or not.[1] That is so even in ordinary cases, but it is doubly true when we review a trial court's order imposing a prior restraint upon speech. As we said in 58 U.S. 886 when a court decides to impose a speech-restrictive injunction, the conclusions it reaches must be "supported by findings that adequately disclose the[ir] *390 evidentiary basisthat carefully identify the impact of [the defendants'] unlawful conduct, and that recognize the importance of avoiding the imposition of punishment for constitutionally protected activity." at 933-93. The Court candidly concedes that the nonexistent "right to be left alone" underlay the District Court's imposition of the cease-and-desist provision. Ante, at 383. It appears not to grasp, however, the decisive import of this concession—which is that the District Court did not think it necessary to exclude all demonstrators from the buffer zone as a means of preventing physical obstruction of clinic entrances or other violations of law (other than the faux violation of intruding upon the speech targets' "private space"). Thus, the Court's statements about what "the District Court was entitled to conclude" are not only speculative (which is fatal enough) but positively contrary to the record of what the District Court did conclude—which was that permitting a few demonstrators within the buffer zone was perfectly acceptable, except when it would infringe the clinic employees' and patrons' right to be free of unwanted speech on public streets. In fact, the District Court expressly stated that if in the future it found that a complete ban on speech within the buffer zone were necessary, it would impose one. 799 F. Supp., at 136, n. 13. I do not grasp the relevance of the Court's assertions that admitting the two counselors into the buffer zone was "an effort to enhance petition' speech rights," ante, at 383— 38, "an effort to bend over backwards to `accommodate' defendants' speech rights," ante, at 381, n. and that "the `cease and desist' limitation must be assessed in that light," ante, at 38. If our First Amendment jurisprudence has stood for anything, it is that courts have an obligation "to enhance speech rights," and a duty "to bend over backwards to `accommodate' speech rights." That principle was reaffirmed in which requires that a judicial injunction against speech burden "no more speech than necessary to *391 serve a significant government interest." Thus, if the situation confronting the District Court permitted "accommodation" of petition' speech rights, it demanded it. The Court's effort to recharacterize this responsibility of special care imposed by the First Amendment as some sort of judicial gratuity is perhaps the most alarming concept in an opinion that contains much to be alarmed about. III I disagree with the Court's facile rejection of the argument that no cause of action was properly found to support the present injunction. Petition contend that the only cause of action which could conceivably support the injunction is a trespass claim; but that cannot support the restrictions at issue, which are designed, as the District Court stated, to prevent obstruction of access and the invasion of "ponal space," 799 F. Supp., rather than to prevent trespass. The Court responds by pointing out that the case contains a nontrespass claim under N. Y. Civ. Rights Law 0—c(2) which provides that "[n]o pon shall, because of sex be subjected to any discrimination in his civil rights, or to any harassment in the exercise thereof, by any other pon." That is true enough, but it seems to me clear that that imaginative state-law claim cannot support a preliminary injunction because it does not have a probability of success on the merits. See A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 8.3 It is, to put it mildly, far from apparent that seeking to prevent both men and women from aborting both male and female human fetuses constitutes discrimination on the basis of sex. Moreover, the reasoning which led the District Court to conclude otherwise has been specifically rejected by this Court. The District Court wrote: "Having demonstrated a likelihood of success on the merits of their federal 1985(3) claim, plaintiffs have also, by definition, *392 demonstrated a likelihood of success on their claim under N. Y. Civ. Rights Law 0—c." 799 F. Supp., Subsequently, however, this Court's opinion in -273 held that claims of the sort at issue here do not constitute discrimination on the basis of sex under 2 U.S. C. 1985(3). Since there is also, as far as I have been able to determine, no decision by any New York court saying that they constitute sex discrimination under 0—c, there is no basis on which the District Court could have concluded (or this Court could affirm) that the chance of success on this claim was anything other than a long shot.[2] The Court proceeds from there to make a much more significant point: An injunction on speech may be upheld even if not justified on the basis of the interests asserted by the plaintiff, as long as it serves "public safety." "[I]n assessing a First Amendment challenge, a court inquires into the governmental interests that are protected by the injunction, which may include an interest in public safety and order. Here, the District Court cited public safety as one of the interests justifying the injunction [T]he fact that `threat to public safety' is not listed anywhere in respondents' complaint as a claim does not preclude a court from relying on the significant governmental interest in public safety in assessing petition' First Amendment argument." Ante, at 375-376. This is a wonderful expansion of judicial power. Rather than courts' being limited to according relief justified by the *393 complaints brought before them, the Court today announces that a complaint gives them, in addition, ancillary power to decree what may be necessary to protect—not the plaintiff, but the public interest! Every private suit makes the district judge a sort of one-man Committee of Public Safety. There is no precedent for this novel and dangerous proposition. In the Court says, "it was to move protest off the sidewalk and to the other side of the street in part because other options would block the free flow of traffic on the streets and sidewalks." Ante, at 375; see also But acknowledging, as we did in that some remedial options are eliminated because they conflict with considerations of public safety is entirely different from asserting, as the Court does today, that public safety can provide part of the justification for the remedy.[3] The only other case cited by the Court is Milk Wagon -295 Ante, at 375. But Milk Wagon Driv upheld an injunction against a union's intimidation of storekeep, not because "the public interest" demanded it, but because the storekeep were custom of the plaintiff dairy, which it was the purpose and effect of the intimidation to harm. 312 U.S., at -295. We have in our state and federal systems a specific entity charged with responsibility for initiating action to guard the public safety. It is called the Executive Branch. When the public safety is threatened, that branch is empowered, by invoking judicial action and by other means, to provide protection. But the Judicial Branch has hitherto been thought powerless to act except as invited by someone other than itself. That is one of the reasons it was thought to be "the least dangerous to the political rights of the [C]onstitution"—because *39 it "can take no active resolution whatever" and "may truly be said to have neither force nor will, but merely judgment." The Federalist No. 78, p. 396 (M. Beloff ed. 1987). It is contrary to the most fundamental principles of separation of pow for the District Court to decree measures that would eliminate obstruction of traffic, in a lawsuit which has established nothing more than trespass.[] * * * Today's opinion makes a destructive inroad upon First Amendment law in holding that the validity of an injunction against speech is to be determined by an appellate court on the basis of what the issuing court might reasonably have found as to necessity, rather than on the basis of what it in fact found. And it makes a destructive inroad upon the separation of pow in holding that an injunction may contain measures justified by the public interest apart from remediation of the legal wrong that is the subject of the complaint. Insofar as the first point is concerned, the Court might properly have upheld the fixed buffer zone without the cease-and-desist provision, since the District Court evidently did conclude (with proper factual support, in my view) that limiting the protest to two was necessary to prevent repetition *395 of the obstruction of access that had occurred in the past. But even that more limited injunction would be invalidated by the second point: the fact that no cause of action related to obstruction of access was properly found to support the injunction. Accordingly, I join Parts I, II—A, and II—C, but dissent from the Court's judgment upholding the fixed buffer zone, and would reve the decision of the Court of Appeals in its entirety. Justice Breyer, concurring in part and dissenting in part. Words take on meaning from context. Considered in context, the preliminary injunction's language does not necessarily create the kind of "floating bubble" that leads the Court to find the injunction unconstitutionally broad. See Part II—C, ante. And until quite recently, no one thought that it did. The "floating bubble" controvy apparently arose during oral argument before the en banc Court of Appeals. The Court of Appeals then gave the District Judge, who has ongoing responsibility for administering the injunction, an initial opportunity to consider the petition' claim and, if necessary, to clarify or limit the relevant language. 389, n. The Court of Appeals' response, in my view, is both legally proper and sensible. I therefore would affirm its judgment. The preliminary injunction's key language prohibits demonstrating "within fifteen feet of any pon or vehicle seeking access to or leaving such facilities." This language first appeared in the temporary restraining order (TRO), where it defined the precise scope of the order's prohibition against blocking "ingress into or egress from" facilities. That portion of the TRO enjoined the defendants from "trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility at which abortions are performed in the Western District of New York, including demonstrating within *396 15 feet of any pon seeking access to or leaving such facilities" App. 23 Before the District Court issued the TRO, Reverend Schenck asked whether this language would create a floating bubble. The District Court replied: "THE COURT: I don't think that was the intent. [W]e're talking about free access. It's not a moving 15 feet. "REV. SCHENCK: So in other words, you're speaking of the facility itself? "THE COURT: I think that's what we were talking about We're talking fifteen feet from [e. g., a doorway] to go right out to where ever you're going. [M]y gosh, you would never be able to deal with that if it was a moving length. "It's fifteen feet from the entrance. [Y]ou have to apply common sense and [an interpretation of the language creating a moving zone] would not in any way at all be a fair interpretation of what we're talking about. "REV. SCHENCK: Well, I'm glad you pointed that out [T]here is, I think, a very high degree of ambiguity and no one said what we're talking about here is 15 feet from an entranceway. "THE COURT: I think everyone is clear on that now." App. to Reply Brief for Petition A-2 to A-3. The identical key language (with the added words "or vehicle") then found its way into the preliminary injunction, issued 16 months later, where its presence apparently remained subject to the "no-float" undtanding that the District Court had called "clear." The preliminary injunction simply separated the key language from the words that had immediately preceded it in the TRO (the "trespassing on, sitting in, blocking ingress into or egress from" language) *397 and it added a phrase that more specifically described the fixed zone as "fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances" There is little reason to believe that the District Court, in relettering the paragraphs or inserting this new phrase, thereby intended to give the key language a significantly different meaning or a new purpose other than its original purpose of narrowing through specification the broader "blocking ingress" language, now appearing a little earlier on in the injunction. The District Court's reference, in an accompanying opinion, to "dual `clear zones' of fifteen feet around entrances and fifteen feet around people and vehicles seeking access," see ante, at 379, n. 10, by itself (and it is by itself) shows little, if anything, more than a "bubble" that surrounds an individual within or just beyond a fixed zone. In all other respects, given the presence of a new additional narrowing phrase—the phrase that speaks of, e. g., "fifteen feet from either side"—the key language at issue here would simply have become redundant. The District Court's and the parties' subsequent words and deeds suggest that the key language has had no significant independent injunctive life. The contempt motions and ord under the TRO, for example, refer to violations of a fixed 15-foot zone from entrances (though in one instance, after counsel repeated the District Court's "no moving zone" clarification (quoted ), Record, Doc. No. 232, pp. 276-279, the court found that a "totality" of the defendant's conduct, which involved serious obstruction within "10 to 20 feet" of an entrance, violated two provisions of the TRO including the key language. See ante, at 379, n. 10; Record, Doc. No. 263, pp. 6, 8). The contempt motions and ord, however, say nothing about violations of a bubble floating outside the fixed entrance zones—though the facts suggest *398 that the contemnors would have violated such floating zones had the TRO called them into existence. Nor is there anything in the many District Court filings in respect to the preliminary injunction that suggests an intent to create a floating bubble of the sort contemplated by this Court. The diagrams that plaintiffs submitted to clarify the injunction's scope contain no reference to a floating zone. Rather, they are marked to indicate 15-foot fixed buffer zones from entrances to clinic property. See Appendix B, infra. In fact, at oral argument before the appeals court panel, counsel for the petition confirmed that the injunction's bubble did not "float" in the way contemplated by this Court. At that time an appeals court judge asked counsel (for the demonstrators) whether the 15-foot zone would apply after "someone leaves the abortion clinic and goes to a grocery store," perhaps "three miles away," and counsel replied as follows: "COUNSEL: I don't think that would [be] prohibit[ed] [by] the court's order. I think the court's order provides for a 15-foot setback or bubble zone around the clinic property "APPEALS COURT: Well, my question is to what extent can you `leave' and still be subject to this injunction? "COUNSEL: Maybe I just didn't see the full implications of the injunction, but I never considered that beyond the 15-foot bubble zone there would be this same restriction. Even I'm not arguing that the injunction goes that far. Maybe I just didn't see that but I didn't interpret it that way." Not surprisingly, the appeals court's panel opinion did not mention floating bubbles. Nor did the parties mention the matter in subsequent District Court proceedings related to modifying or restoring the injunction—proceedings that took *399 place after the Court of Appeals' panel decision invalidating the injunction, but before the Court of Appeals heard the case en banc and reved. At the latter time, apparently for the first time, the parties agreed that the injunction's language produced a zone that moved in some way or another. Given this posture, it is not surprising that the en banc Court of Appeals did not deny the existence of a floating bubble zone, but left the initial resolution of the floating bubble controvy to the District Court. The Court of Appeals addressed the parties' argument regarding what the court termed a "floating buffer"—an issue that had never been raised before—by holding that the "floating buffer" was on the assumption that the District Court would apply it in a constitutional manner, at 389, n. Thus, the Court of Appeals did not definitively interpret the scope of the relevant language, but instead left it to the District Court to resolve in the first instance any linguistic ambiguity that might create a constitutional problem. In my view, this action by the Court of Appeals was appropriate, and this Court should do the same. Appellate courts do not normally consider claims that have not been raised first in the District Court. 28 U.S. 106, ). There is no good reason to depart from this ordinary principle here. The District Court undtands the history, and thus the meaning, of the language in context better than do we. If the petition show a need for interpretation or modification of the language, the District Court, which is directly familiar with the facts underlying the injunction, can respond quickly and flexibly. An appellate decision is not immediately necessary because the key language in the injunction has not yet created, nor does it threaten to create, any significant practical difficulty. No defendant in *00 this case has been threatened with contempt for violating the ostensible floating bubble provision. Nor is there any realistic reason to believe that the provision will deter the exercise of constitutionally protected speech rights. I recognize that the District Court, interpreting or reinterpreting the key language, might find that it creates some kind of bubble that "floats," perhaps in the way I mention above. See But even then, the constitutional validity of its interpretation would depend upon the specific interpretation that the court then gave and the potentially justifying facts. Some bubbles that "float" in time or space would seem to raise no constitutional difficulty. For example, a 15-foot buffer zone that is "fixed" in place around a doorway but that is activated only when a clinic patient is present can be said to "float" in time or, to a small degree, in space. See Appendix B, infra, Diagram 1 (Point X). Another example of a possibly constitutional "floating" bubble would be one that protects a patient who alights from a vehicle at the curbside in front of the Buffalo GYN Womenservices clinic and must cross the two-foot stretch of sidewalk that is outside the 15-foot fixed buffer. See Appendix B, infra, Diagram 2 (Point Y). Other bubbles, such as a bubble that follows a clinic patient to a grocery store three miles away, apparently are of no interest to anyone in this case. A floating bubble that follows a patient who is walking along the sidewalk just in front of a clinic, but outside the 15-foot fixed zone, could raise a constitutional problem. See Appendix B, infra, Diagram 3 (Point Z). But the constitutional validity of that kind of bubble should depend upon the particular clinic and the particular circumstances to which the District Court would point in justification. The Court of Appeals wisely recognized that these matt should be left in the first instance to the consideration of the District Court. In sum, ordinary principles of judicial administration would permit the District Court to deal with the petition' current objection. These principles counsel against this *01 Court's now offering its own interpretation of the injunction—an interpretation that is not obvious from the language and that has never been considered by the District Court. I do not see how the Court's review of the key language, in the absence of special need and in violation of those principles, can make the lower courts' difficult, ongoing, circumstance-specific task any easier. To the contrary, district judges cannot assure in advance, without the benefit of argument by the parties, that the language of complex, fact-based injunctions is free of every ambiguity that later interpretation or misinterpretation finds possible. And I see no special need here for the Court to make an apparently general statement about the law of "floating bubbles," which later developments may show to have been unnecessary or unwise. Hence, I join all but Part II—C of the Court's opinion. I would affirm the judgment of the Court of Appeals in its entirety. APPENDIX A TO OPINION OF BREYER, J. "TEMPORARY RESTRAINING ORDER "Upon hearing it is hereby "ORDERED THAT Defendants, the offic, directors, agents, and representatives of defendants, and all other pons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual notice of this Order, are: "1. Temporarily enjoined and restrained in any manner or by any means from: "(a) trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any facility at which abortions are performed in the Western District of New York, including demonstrating within 15 feet of any pon seeking access to or leaving such facilities, except that sidewalk counseling by no more than two pons as specified in paragraph (b) shall be allowed; *02 "(b) physically abusing or tortiously harassing pons entering or leaving, working at or using any services at any facility at which abortions are performed; Provided, however, that sidewalk counseling, consisting of a convation of a nonthreatening nature by not more than two people with each pon they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling and that if anyone who wants to, or who is sought to be counseled who wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event the pons seeking to counsel that pon shall cease and desist from such counseling of that pon. In addition, provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site; "(c) making any excessively loud sound which disturbs, injures, or endang the health or safety of any patient or employee of a health care facility where abortions are performed in the Western District of New York, nor shall any pon make such sounds which interferes with the rights of anyone not in violation of this Order; ". and it is further "ORDERED that nothing in this Order shall be construed to limit Project Rescue participants' exercise of their legitimate First Amendment rights" App. 22-26 "PRELIMINARY INJUNCTION "Upon consideration of the evidence introduced at a hearing it is hereby "ORDERED that defendants, the offic, directors, agents, and representatives of defendants, and all other pons whomsoever, known or unknown, acting in their behalf or in concert with them, and receiving actual or constructive notice of this Order, are: *03 ". Enjoined and restrained in any manner or by any means from: "(a) trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed in the Western District of New York; "(b) demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities, or within fifteen feet of any pon or vehicle seeking access to or leaving such facilities, except that the form of demonstrating known as sidewalk counseling by no more than two pons as specified in paragraph (c) shall be allowed; "(c) physically abusing, grabbing, touching, pushing, shoving, or crowding pons entering or leaving, working at or using any services at any facility at which abortions are performed; provided, however, that sidewalk counseling consisting of a convation of a non-threatening nature by not more than two people with each pon or group of pons they are seeking to counsel shall not be prohibited. Also provided that no one is required to accept or listen to sidewalk counseling, and that if anyone or any group of pons who is sought to be counseled wants to not have counseling, wants to leave, or walk away, they shall have the absolute right to do that, and in such event all pons seeking to counsel that pon or group of pons shall cease and desist from such counseling, and shall thereafter be governed by the provisions of paragraph (b) pertaining to not demonstrating within fifteen feet of pons seeking access to or leaving a facility. In addition, it is further provided that this right to sidewalk counseling as defined herein shall not limit the right of the Police Department to maintain public order or *0 such reasonably necessary rules and regulations as they decide are necessary at each particular demonstration site; "(d) using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endang the health or safety of any patient or employee of a health care facility at which abortions are performed, nor shall any pon make such sounds which interfere with the rights of anyone not in violation of this Order; ". and it is further "ORDERED that nothing in this Order shall be construed to limit defendants and those acting in concert with them from exercising their legitimate First Amendment rights." 799 F. Supp., at 10-. *05 APPENDIX B TO OPINION OF BREYER, J. Diagram 1 Alexander Women's Group 220 Alexander Street, Ste. 300 Rochester, NY 1607 (part of Genesee Hospital Complex) *06 APPENDIX B TO OPINION OF BREYER, J. Diagram 2 Buffalo GYN Womenservices 121 Main Street Buffalo, NY 1607 *07 APPENDIX B TO OPINION OF BREYER, J. Diagram 3 The Family Medicine Center 885 South Ave. Rochester, NY 1620 (part of Highland Hospital complex)

Justice Rehnquist

majority

Stewart v. Martinez-Villareal

1998-05-18

https://www.courtlistener.com/opinion/118206/stewart-v-martinez-villareal/

https://www.courtlistener.com/api/rest/v3/clusters/118206/

1997-063

In Ford v. Wainwright, 477 U.S. 399, 410 (1986), we held that "the Eighth Amendment prohibits a State from inflicting the penalty of death upon a prisoner who is insane." In this case, we must decide whether respondent MartinezVillareal's Ford claim is subject to the restrictions on "second or successive" applications for federal habeas relief found in the newly revised 28 U.S. C. § 2244 (1994 ed., Supp. II). We conclude that it is not. Respondent was convicted on two counts of first-degree murder and sentenced to death. He unsuccessfully challenged his conviction and sentence on direct appeal in the *640 Arizona state courts. Arizona v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670, cert. denied, 474 U.S. 975 (1985). He then filed a series of petitions for habeas relief in state court, all of which were denied. He also filed three petitions for habeas relief in federal court, all of which were dismissed on the ground that they contained claims on which the state remedies had not yet been exhausted. In March 1993, respondent filed a fourth habeas petition in federal court. In addition to raising other claims, respondent asserted that he was incompetent to be executed. Counsel for the State urged the District Court to dismiss respondent's Ford claim as premature. The court did so but granted the writ on other grounds. The Court of Appeals for the Ninth Circuit reversed the District Court's granting of the writ but explained that its instruction to enter judgment denying the petition was not intended to affect any later litigation of the Ford claim. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1309, n. 1 (1996). On remand to the District Court, respondent, fearing that the newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA) might foreclose review of his Ford claim, moved the court to reopen his earlier petition. In March 1997, the District Court denied the motion and reassured respondent that it had "`no intention of treating the [Ford] claim as a successive petition.' " 118 F.3d 628, 630 (CA9 1997). Shortly thereafter, the State obtained a warrant for respondent's execution. Proceedings were then held in the Arizona Superior Court on respondent's mental condition. That court concluded that respondent was fit to be executed. The Arizona Supreme Court rejected his appeal of that decision. Respondent then moved in the Federal District Court to reopen his Ford claim. He challenged both the conclusions reached and the procedures employed by the Arizona state courts. Petitioners responded that under AEDPA, the court lacked jurisdiction. The District Court agreed with *641 petitioners, ruling on May 16, 1997, that it did not have jurisdiction over the claim. Respondent then moved in the Court of Appeals for permission to file a successive habeas corpus application. § 2244(b)(3). The Court of Appeals stayed respondent's execution so that it could consider his request. It later held that § 2244(b) did not apply to a petition that raises only a competency to be executed claim and that respondent did not, therefore, need authorization to file the petition in the District Court. It accordingly transferred the petition that had been presented to a member of that court back to the District Court. 118 F.3d, at 634-635. We granted certiorari, 522 U.S. 912 (1997), to resolve an apparent conflict between the Ninth Circuit and the Eleventh Circuit on this important question of federal law. See, e. g., In re Medina, 109 F.3d 1556 (CA11 1996). Before reaching the question presented, however, we must first decide whether we have jurisdiction over this case. In AEDPA, Congress established a "gatekeeping" mechanism for the consideration of "second or successive habeas corpus applications" in the federal courts. Felker v. Turpin, 518 U.S. 651, 657 (1996); § 2244(b). An individual seeking to file a "second or successive" application must move in the appropriate court of appeals for an order directing the district court to consider his application. § 2244(b)(3)(A). The court of appeals then has 30 days to decide whether to grant the authorization to file. § 2244(b)(3)(D). A court of appeals' decision whether to grant authorization "to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." § 2244(b)(3)(E). If the Court of Appeals in this case had granted respondent leave to file a second or successive application, then we would be without jurisdiction to consider petitioners' petition and would have to dismiss the writ. This is not, however, what the Court of Appeals did. The Court of Appeals *642 held that the § 2244(b) restrictions simply do not apply to respondent's Ford claim, and that there was accordingly no need for him to apply for authorization to file a second or successive petition. We conclude today that the Court of Appeals reached the correct result in this case, and that we therefore have jurisdiction to consider petitioners' petition. Section 2244(b) provides: "(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. "(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— "(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or "(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and "(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." If respondent's current request for relief is a "second or successive" application, then it plainly should have been dismissed. The Ford claim had previously been presented in the 1993 petition, and would therefore be subject to dismissal under subsection (b)(1). Even if we were to consider the Ford claim to be newly presented in the 1997 petition, it does not fit within either of subsection (b)(2)'s exceptions, and dismissal would still be required. *643 Petitioners contend that because respondent has already had one "fully-litigated habeas petition, the plain meaning of § 2244(b) as amended requires his new petition to be treated as successive." Brief for Petitioners 12. Under that reading of the statute, respondent is entitled to only one merits judgment on his federal habeas claims. Because respondent has already presented a petition to the District Court, and the District Court and the Court of Appeals have acted on that petition, § 2244(b) must apply to any subsequent request for federal habeas relief. But the only claim on which respondent now seeks relief is the Ford claim that he presented to the District Court, along with a series of other claims, in 1993. The District Court, acting for the first time on the merits of any of respondent's claims for federal habeas relief, dismissed the Ford claim as premature, but resolved all of respondent's other claims, granting relief on one. The Court of Appeals subsequently reversed the District Court's grant of relief. At that point it became clear that respondent would have no federal habeas relief for his conviction or his death sentence, and the Arizona Supreme Court issued a warrant for his execution. His claim then unquestionably ripe, respondent moved in the state courts for a determination of his competency to be executed. Those courts concluded that he was competent, and respondent moved in the Federal District Court for review of the state court's determination. This may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to § 2244(b). There was only one application for habeas relief, and the District Court ruled (or should have ruled) on each claim at the time it became ripe. Respondent was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief. The Court of Appeals was therefore correct in holding that *644 respondent was not required to get authorization to file a "second or successive" application before his Ford claim could be heard. If petitioners' interpretation of "second or successive" were correct, the implications for habeas practice would be far reaching and seemingly perverse. In Picard v. Connor, 404 U.S. 270, 275 (1971), we said: "It has been settled since Ex parte Royall, 117 U.S. 241 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. . . . The exhaustion-of-state-remedies doctrine, now codified in the federal habeas statute, 28 U.S. C. §§ 2254(b) and (c), reflects a policy of federal-state comity. . . . It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Later, in Rose v. Lundy, 455 U.S. 509, 522 (1982), we went further and held that "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." But none of our cases expounding this doctrine have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition. We believe that respondent's Ford claim here—previously dismissed as premature—should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies. True, the cases are not identical; respondent's Ford claim was dismissed as premature, not because he had not exhausted state remedies, but because his execution was not imminent and therefore *645 his competency to be executed could not be determined at that time. But in both situations, the habeas petitioner does not receive an adjudication of his claim. To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review. See, e. g., United States ex rel. Barnes v. Gilmore, 968 F. Supp. 384, 385 (ND Ill. 1997) ("If Barnes continues in his nonpayment of the required $5 filing fee . . . this Court will be constrained to dismiss his petition"); Marsh v. United States District Court for the Northern District of California, 1995 WL 23942 (ND Cal., Jan. 9, 1995) ("Because petitioner has since not paid the filing fee nor submitted a signed affidavit of poverty, the petition for writ of habeas corpus is dismissed without prejudice"); Taylor v. Mendoza, 1994 WL 698493 (ND Ill., Dec. 12, 1994).[*] Petitioners place great reliance on our decision in Felker v. Turpin, 518 U.S. 651 (1996), but we think that reliance is misplaced. In Felker we stated that the "new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what used to be called in habeas corpus practice `abuse of the writ.' " Id., at 664. It is certain that respondent's Ford claim would not be barred under any form of res judicata. Respondent brought his claim in a timely fashion, and it has not been ripe for resolution until now. Thus, respondent's Ford claim was not a "second or successive" petition under § 2244(b) and we have jurisdiction to review the judgment of the Court of Appeals on petitioners' petition for certiorari. But for the same reasons that we find we have jurisdiction, we hold that the Court of Appeals was correct in deciding that respondent was entitled to a *646 hearing on the merits of his Ford claim in the District Court. The judgment of the Court of Appeals is therefore Affirmed.

In we held that "the Eighth Amendment prohibits a State from inflicting the penalty of death upon a prisoner who is insane." In this case, we must decide whether respondent MartinezVillareal's Ford claim is subject to the restrictions on "second or successive" applications for federal habeas relief found in the newly revised 28 U.S. C. 2244 ( ed., Supp. II). We conclude that it is not. Respondent was convicted on two counts of first-degree murder and sentenced to death. He unsuccessfully challenged his conviction and sentence on direct appeal in the *640 Arizona state courts. He then filed a series of petitions for habeas relief in state court, all of which were denied. He also filed three petitions for habeas relief in federal court, all of which were dismissed on the ground that they contained claims on which the state remedies had not yet been exhausted. In March 1993, respondent filed a fourth habeas petition in federal court. In addition to raising other claims, respondent asserted that he was incompetent to be executed. Counsel for the State urged the District Court to dismiss respondent's Ford claim as premature. The court did so but granted the writ on other grounds. The Court of Appeals for the Ninth Circuit reversed the District Court's granting of the writ but explained that its instruction to enter judgment denying the petition was not intended to affect any later litigation of the Ford claim. On remand to the District Court, respondent, fearing that the newly enacted Antiterrorism and Effective Death Penalty Act (AEDPA) might foreclose review of his Ford claim, moved the court to reopen his earlier petition. In March the District Court denied the motion and reassured respondent that it had "`no intention of treating the [Ford] claim as a successive petition.' " Shortly thereafter, the State obtained a warrant for respondent's execution. Proceedings were then held in the Arizona Superior Court on respondent's mental condition. That court concluded that respondent was fit to be executed. The Arizona Supreme Court rejected his appeal of that decision. Respondent then moved in the Federal District Court to reopen his Ford claim. He challenged both the conclusions reached and the procedures employed by the Arizona state courts. Petitioners responded that under AEDPA, the court lacked jurisdiction. The District Court agreed with *641 petitioners, ruling on May 16, that it did not have jurisdiction over the claim. Respondent then moved in the Court of Appeals for permission to file a successive habeas corpus application. 2244(b)(3). The Court of Appeals stayed respondent's execution so that it could consider his request. It later held that 2244(b) did not apply to a petition that raises only a competency to be executed claim and that respondent did not, therefore, need authorization to file the petition in the District It accordingly transferred the petition that had been presented to a member of that court back to the District -635. We granted certiorari, to resolve an apparent conflict between the Ninth Circuit and the Eleventh Circuit on this important question of federal law. See, e. g., In re Medina, Before reaching the question presented, however, we must first decide whether we have jurisdiction over this case. In AEDPA, Congress established a "gatekeeping" mechanism for the consideration of "second or successive habeas corpus applications" in the federal courts. ; 2244(b). An individual seeking to file a "second or successive" application must move in the appropriate court of appeals for an order directing the district court to consider his application. 2244(b)(3)(A). The court of appeals then has 30 days to decide whether to grant the authorization to file. 2244(b)(3)(D). A court of appeals' decision whether to grant authorization "to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 2244(b)(3)(E). If the Court of Appeals in this case had granted respondent leave to file a second or successive application, then we would be without jurisdiction to consider petitioners' petition and would have to dismiss the writ. This is not, however, what the Court of Appeals did. The Court of Appeals *642 held that the 2244(b) restrictions simply do not apply to respondent's Ford claim, and that there was accordingly no need for him to apply for authorization to file a second or successive petition. We conclude today that the Court of Appeals reached the correct result in this case, and that we therefore have jurisdiction to consider petitioners' petition. Section 2244(b) provides: "(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. "(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— "(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or "(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and "(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." If respondent's current request for relief is a "second or successive" application, then it plainly should have been dismissed. The Ford claim had previously been presented in the 1993 petition, and would therefore be subject to dismissal under subsection (b)(1). Even if we were to consider the Ford claim to be newly presented in the petition, it does not fit within either of subsection (b)(2)'s exceptions, and dismissal would still be required. *643 Petitioners contend that because respondent has already had one "fully-litigated habeas petition, the plain meaning of 2244(b) as amended requires his new petition to be treated as successive." Brief for Petitioners 12. Under that reading of the statute, respondent is entitled to only one merits judgment on his federal habeas claims. Because respondent has already presented a petition to the District Court, and the District Court and the Court of Appeals have acted on that petition, 2244(b) must apply to any subsequent request for federal habeas relief. But the only claim on which respondent now seeks relief is the Ford claim that he presented to the District Court, along with a series of other claims, in 1993. The District Court, acting for the first time on the merits of any of respondent's claims for federal habeas relief, dismissed the Ford claim as premature, but resolved all of respondent's other claims, granting relief on one. The Court of Appeals subsequently reversed the District Court's grant of relief. At that point it became clear that respondent would have no federal habeas relief for his conviction or his death sentence, and the Arizona Supreme Court issued a warrant for his execution. His claim then unquestionably ripe, respondent moved in the state courts for a determination of his competency to be executed. Those courts concluded that he was competent, and respondent moved in the Federal District Court for review of the state court's determination. This may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim, but this does not mean that there were two separate applications, the second of which was necessarily subject to 2244(b). There was only one application for habeas relief, and the District Court ruled (or should have ruled) on each claim at the time it became ripe. Respondent was entitled to an adjudication of all of the claims presented in his earlier, undoubtedly reviewable, application for federal habeas relief. The Court of Appeals was therefore correct in holding that *644 respondent was not required to get authorization to file a "second or successive" application before his Ford claim could be heard. If petitioners' interpretation of "second or successive" were correct, the implications for habeas practice would be far reaching and seemingly perverse. In we said: "It has been settled since Ex parte Royall, that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. The exhaustion-of-state-remedies doctrine, now codified in the federal habeas statute, 28 U.S. C. 2254(b) and (c), reflects a policy of federal-state comity. It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Later, in we went further and held that "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." But none of our cases expounding this doctrine have ever suggested that a prisoner whose habeas petition was dismissed for failure to exhaust state remedies, and who then did exhaust those remedies and returned to federal court, was by such action filing a successive petition. A court where such a petition was filed could adjudicate these claims under the same standard as would govern those made in any other first petition. We believe that respondent's Ford claim here—previously dismissed as premature—should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies. True, the cases are not identical; respondent's Ford claim was dismissed as premature, not because he had not exhausted state remedies, but because his execution was not imminent and therefore *645 his competency to be executed could not be determined at that time. But in both situations, the habeas petitioner does not receive an adjudication of his claim. To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review. See, e. g., United States ex rel. ; ;[*] Petitioners place great reliance on our decision in but we think that reliance is misplaced. In Felker we stated that the "new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what used to be called in habeas corpus practice `abuse of the writ.' " It is certain that respondent's Ford claim would not be barred under any form of res judicata. Respondent brought his claim in a timely fashion, and it has not been ripe for resolution until now. Thus, respondent's Ford claim was not a "second or successive" petition under 2244(b) and we have jurisdiction to review the judgment of the Court of Appeals on petitioners' petition for certiorari. But for the same reasons that we find we have jurisdiction, we hold that the Court of Appeals was correct in deciding that respondent was entitled to a *646 hearing on the merits of his Ford claim in the District The judgment of the Court of Appeals is therefore Affirmed.

Justice Scalia

dissenting

Stewart v. Martinez-Villareal

1998-05-18

https://www.courtlistener.com/opinion/118206/stewart-v-martinez-villareal/

https://www.courtlistener.com/api/rest/v3/clusters/118206/

1997-063

It is axiomatic that "the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law." Ex parte Bollman, 4 Cranch 75, 94 (1807) (opinion of Marshall, C. J.). And it is impossible to conceive of language that more clearly precludes respondent's renewed competency-to-be-executed claim than the written law before us here: a "claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed." 28 U.S. C. § 2244(b)(1) (1994 ed., Supp. II) (emphasis added). The Court today flouts the unmistakable language of the statute to avoid what it calls a "perverse" result. Ante, at 644. There is nothing "perverse" about the result that the statute commands, except that it contradicts pre-existing judgemade law, which it was precisely the purpose of the statute to change. Respondent received a full hearing on his competency-tobe-executed claim in state court. The state court appointed experts and held a 4-day evidentiary hearing, after which it found respondent "aware that he is to be punished for the crime of murder and . . . aware that the impending punishment for that crime is death . . . ." App. 172. Respondent appealed this determination to the Supreme Court of Arizona, which accepted jurisdiction and denied relief. He sought certiorari of that denial in this Court, which also denied relief. To say that it is "perverse" to deny respondent a second round of time-consuming lower-federal-court review of his conviction and sentence—because that means forgoing lower-federal-court review of a competency-to-be-executed claim that arises only after he has already sought federal *647 habeas on other issues—is to say that state-court determinations must always be reviewable, not merely by this Court, but by federal district courts. That is indeed the principle that this Court's imaginative habeas-corpus jurisprudence had established, but it is not a principle of natural law. Lest we forget, Congress did not even have to create inferior federal courts, U. S. Const., Art. I, § 8, cl. 9; Art. III, § 1, let alone invest them with plenary habeas jurisdiction over state convictions. And for much of our history, as Justice Thomas points out, post, at 652, prisoners convicted by validly constituted courts of general criminal jurisdiction had no recourse to habeas corpus relief at all. See Wright v. West, 505 U.S. 277, 285-286 (1992) (opinion of Thomas, J.). It seems to me much further removed from the "perverse" to deny second-time collateral federal review than it is to treat state-court proceedings as nothing more than a procedural prelude to lower-federal-court review of state supreme-court determinations. The latter was the regime that our habeas jurisprudence established and that the Antiterrorism and Effective Death Penalty Act (AEDPA) intentionally revised—to require extraordinary showings before a state prisoner can take a second trip around the extended district-court-to-Supreme-Court federal track. It is wrong for us to reshape that revision on the very lathe of judgemade habeas jurisprudence it was designed to repair. Today's opinion resembles nothing so much as the cases of the 1920's that effectively decided that the Clayton Act, designed to eliminate federal-court injunctions against union strikes and picketing, "restrained the federal courts from nothing that was previously proper." T. Powell, The Supreme Court's Control Over the Issue of Injunctions in Labor Disputes, 13 Acad. Pol. Sci. Proc. 37, 74 (1928). In criticizing those cases as examples of Gefühlsjurisprudenz (and in insisting upon "the necessity of preferring . . . the Gefühl of the legislator to the Gefühl of the judge"), Dean Landis recalled Dicey's trenchant observation that "`judgemade *648 law occasionally represents the opinion of the day before yesterday.' " Landis, A Note on "Statutory Interpretation," 43 Harv. L. Rev. 886, 888 (1930), quoting A. Dicey, Law and Opinion in England 369 (1926). As hard as it may be for this Court to swallow, in yesterday's enactment of AEDPA Congress curbed our prodigality with the Great Writ. The words that Landis applied to the Clayton Act fit very nicely the statute that emerges from the Court's decision in the present case: "The mutilated [AEDPA] bears ample testimony to the `day before yesterday' that judges insist is today." 43 Harv. L. Rev., at 892. I dissent.

It is axiomatic that "the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law." Ex parte Bollman, And it is impossible to conceive of language that more clearly precludes respondent's renewed competency-to-be-executed claim than the written law before us here: a "claim presented in a second or successive habeas corpus application that was presented in a prior application shall be dismissed." 28 U.S. C. 2244(b)(1) (19 ed., Supp. II) (emphasis added). The Court today flouts the unmistakable language of the statute to avoid what it calls a "perverse" result. Ante, at 644. There is nothing "perverse" about the result that the statute commands, except that it contradicts pre-existing judgemade law, which it was precisely the purpose of the statute to change. Respondent received a full hearing on his competency-tobe-executed claim in state court. The state court appointed experts and held a 4-day evidentiary hearing, after which it found respondent "aware that he is to be punished for the crime of murder and aware that the impending punishment for that crime is death" App. 172. Respondent appealed this determination to the Supreme Court of Arizona, which accepted jurisdiction and denied relief. He sought certiorari of that denial in this Court, which also denied relief. To say that it is "perverse" to deny respondent a second round of time-consuming lower-federal-court review of his conviction and sentence—because that means forgoing lower-federal-court review of a competency-to-be-executed claim that arises only after he has already sought federal *647 habeas on other issues—is to say that state-court determinations must always be reviewable, not merely by this Court, but by federal district courts. That is indeed the principle that this Court's imaginative habeas-corpus jurisprudence had established, but it is not a principle of natural law. Lest we forget, Congress did not even have to create inferior federal courts, U. S. Const., Art. I, 8, cl. 9; Art. III, 1, let alone invest them with plenary habeas jurisdiction over state convictions. And for much of our history, as Justice Thomas points out, post, at 652, prisoners convicted by validly constituted courts of general criminal jurisdiction had no recourse to habeas corpus relief at all. See It seems to me much further removed from the "perverse" to deny second-time collateral federal review than it is to treat state-court proceedings as nothing more than a procedural prelude to lower-federal-court review of state supreme-court determinations. The latter was the regime that our habeas jurisprudence established and that the Antiterrorism and Effective Death Penalty Act (AEDPA) intentionally revised—to require extraordinary showings before a state prisoner can take a second trip around the extended district-court-to-Supreme-Court federal track. It is wrong for us to reshape that revision on the very lathe of judgemade habeas jurisprudence it was designed to repair. Today's opinion resembles nothing so much as the cases of the 1920's that effectively decided that the Clayton Act, designed to eliminate federal-court injunctions against union strikes and picketing, "restrained the federal courts from nothing that was previously proper." T. Powell, The Supreme Court's Control Over the Issue of Injunctions in Labor Disputes, 13 Acad. Pol. Sci. Proc. 37, 74 (1928). In criticizing those cases as examples of Gefühlsjurisprudenz (and in insisting upon "the necessity of preferring the Gefühl of the legislator to the Gefühl of the judge"), Dean Landis recalled Dicey's trenchant observation that "`judgemade *648 law occasionally represents the opinion of the day before yesterday.' " Landis, A Note on "Statutory Interpretation," quoting A. Dicey, Law and Opinion in England 369 (1926). As hard as it may be for this Court to swallow, in yesterday's enactment of AEDPA Congress curbed our prodigality with the Great Writ. The words that Landis applied to the Clayton Act fit very nicely the statute that emerges from the Court's decision in the present case: "The mutilated [AEDPA] bears ample testimony to the `day before yesterday' that judges insist is today." I dissent.

Justice Thomas

second_dissenting

Stewart v. Martinez-Villareal

1998-05-18

https://www.courtlistener.com/opinion/118206/stewart-v-martinez-villareal/

https://www.courtlistener.com/api/rest/v3/clusters/118206/

1997-063

From 1986 to 1991, respondent filed three petitions for federal habeas relief; each was dismissed on the ground that respondent had not yet exhausted his state remedies. In March 1993, respondent filed his fourth federal habeas petition presenting, inter alia, his claim under Ford v. Wainwright, 477 U.S. 399 (1986), that he was not competent to be executed. Finding that some of respondent's claims were procedurally defaulted, that others were without merit, and that respondent's Ford claim was not ripe for decision, the Court of Appeals held that the fourth petition should be denied. In May 1997, after the Arizona state courts rejected his Ford claim, respondent returned for a fifth time to federal court, again arguing that he was incompetent to be executed. Because this filing was a "second or successive habeas corpus application," respondent's Ford claim should have been dismissed. I therefore respectfully dissent. Unlike the Court, I begin with the plain language of the statute. Section 2244(b)(1) provides that a "claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed." 28 U.S. C. § 2244(b)(1) (1994 ed., Supp. II). An "application" is a "putting to, placing before, preferring a request or petition *649 to or before a person. The act of making a request for something." Black's Law Dictionary 98-99 (6th ed. 1990); see also Webster's Ninth New Collegiate Dictionary 97 (1991) (application is a "request, petition . . . a form used in making a request"). Respondent's March 1993 federal habeas petition was clearly a habeas "application" (the Court concedes as much), because it placed before the District Court respondent's request for a writ of habeas corpus. Once this application was denied, however, none of respondent's claims for relief——including his claim that he was incompetent to be executed——remained before the Court. It was thus necessary for respondent to file a new request for habeas relief so that his Ford claim would again be "pu[t] to" or "plac[ed] before" the District Court. (The Court certainly did not raise respondent's Ford claim sua sponte. ) Respondent's May 1997 request for relief was therefore a habeas application distinct from his earlier requests for relief, and it was thus undoubtedly "second or successive." Respondent's Ford claim was also "presented" in both his March 1993 and his May 1997 habeas applications. To "present" is "to bring or introduce into the presence of someone" or "to lay (as a charge) before a court as an object of inquiry." Webster's Ninth New Collegiate Dictionary 930 (1991). Respondent clearly "presented" his Ford claim in both his 1993 and his 1997 habeas applications, for in each he introduced to the District Court his argument that he is not competent to be executed. Under the plain meaning of the statute, therefore, respondent's Ford claim was a "claim presented in a second or successive habeas corpus application . . . that was presented in a prior application." § 2244(b)(1). The reasons offered by the Court for disregarding the plain language of the statute are unpersuasive. Conceding that "[t]his may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim," ante, at 643, the Court nevertheless concludes that respondent has really filed only "one application for habeas *650 relief," ibid. (emphasis added). The District Court, however, did not hold respondent's Ford claim in abeyance when it denied his March 1993 habeas petition, so that claim was no longer before the District Court in May 1997. At best, then, respondent's May 1997 filing was an effort to reopen his Ford claim. But that filing (which is most definitely an "application") is subject to the statutory requirements for second or successive habeas applications. As we have recently stated in a closely related context: "[A] prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of § 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, § 2244(b)(1), or the bar against litigation of claims not presented in a prior application, § 2244(b)(2)." Cal- deron v. Thompson, ante, at 553. In just the same way, habeas petitioners cannot be permitted to evade § 2244(b)'s prohibitions simply by moving to reopen claims already presented in a prior habeas application. The Court also reasons that respondent's "Ford claim here—previously dismissed as premature—should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies," for "in both situations, the habeas petitioner does not receive an adjudication of his claim." Ante, at 644, 645. Implicit in the Court's reasoning is its assumption that a prisoner whose habeas petition has been dismissed for failure to exhaust state remedies, and who then exhausts those remedies and returns to federal court, has not then filed a "second or successive habeas corpus application." § 2244(b)(1). To be sure, "none of our cases . . . ha[s] ever suggested" that a prisoner in such a situation was filing a successive petition. See ante, at 644. But that is because, before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 *651 (AEDPA), 110 Stat. 1218, a federal court could grant relief on a claim in a second or successive application so long as the ground for relief had not already been "presented and determined, " 28 U.S. C. § 2244(a) (emphasis added), or "adjudicated," § 2244(b), in a previous application. Claims presented in a petition dismissed for failure to exhaust are neither "determined" nor "adjudicated." Thus, the preAEDPA practice of permitting petitioners to raise claims already presented in applications dismissed for failure to exhaust says nothing about whether those later applications were considered second or successive. Even if the Court were correct that such an application would not have been considered second or successive, such a case is altogether different from this case, in which only one of many claims was not adjudicated. In the former situation, the federal court dismisses the unexhausted petition without prejudice, see Rose v. Lundy, 455 U.S. 509, 520-522 (1982), so it could be argued that the petition should be treated as if it had never been filed. In contrast, when a court addresses a petition and adjudicates some of the claims presented in it, that petition is certainly an "application," and any future application must be "second or successive."[1] Otherwise, the court would have adjudicated the merits of claims that had not been presented in an "application."[2] Ultimately, the Court's holding is driven by what it sees as the "far reaching and seemingly perverse" implications for federal habeas practice of a literal reading of the statute. *652 Ante, at 644. Such concerns are not, in my view, sufficient to override the statute's plain meaning. And to the extent concerns about habeas practice motivate the Court's decision, it bears repeating that federal habeas corpus is a statutory right and that this Court, not Congress, has expanded the availability of the writ. Before this judicial expansion, a prisoner seeking a writ of habeas corpus was permitted to challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See Wright v. West, 505 U.S. 277, 285-286 (1992) (opinion of Thomas, J.). A Ford claim obviously does not present such a challenge.[3] A statute that has the effect of precluding adjudication of a claim that for most of our Nation's history would have been considered noncognizable on habeas can hardly be described as "perverse." Accordingly, whether one considers respondent's March 1993 federal habeas petition to have been his first habeas application—because his three previous applications had been dismissed for failure to exhaust—or his fourth —because respondent had already filed three previous habeas applications by that time—his May 1997 request for relief was undoubtedly either a "second" (following his first) or "successive" (following his fourth) habeas application. Respondent's Ford claim, presented in this second or successive application, should have been dismissed as a "claim . . . presented in a prior application." § 2244(b)(1).

From 1986 to 1991, respondent filed three petitions for federal habeas relief; each was dismissed on the ground that respondent had not yet exhausted his state remedies. In March 1993, respondent filed his fourth federal habeas petition presenting, inter alia, his claim under that he was not competent to be executed. Finding that some of respondent's claims were procedurally defaulted, that others were without merit, and that respondent's Ford claim was not ripe for decision, the Court of Appeals held that the fourth petition should be denied. In May 1997, after the Arizona state courts rejected his Ford claim, respondent returned for a fifth time to federal court, again arguing that he was incompetent to be executed. Because this filing was a "second or successive habeas corpus application," respondent's Ford claim should have been dismissed. I therefore respectfully dissent. Unlike the Court, I begin with the plain language of the statute. Section 2244(b)(1) provides that a "claim presented in a second or successive habeas corpus application that was presented in a prior application shall be dismissed." 28 U.S. C. 2244(b)(1) (1994 ed., Supp. II). An "application" is a "putting to, placing before, preferring a request or petition *649 to or before a person. The act of making a request for something." Black's Law Dictionary 98-99 (6th ed. 1990); see also Webster's Ninth New Collegiate Dictionary 97 (1991) (application is a "request, petition a form used in making a request"). Respondent's March 1993 federal habeas petition was clearly a habeas "application" (the Court concedes as much), because it placed before the District Court respondent's request for a writ of habeas corpus. Once this application was denied, however, none of respondent's claims for relief——including his claim that he was incompetent to be executed——remained before the Court. It was thus necessary for respondent to file a new request for habeas relief so that his Ford claim would again be "pu[t] to" or "plac[ed] before" the District Court. (The Court certainly did not raise respondent's Ford claim sua sponte. ) Respondent's May 1997 request for relief was therefore a habeas application distinct from his earlier requests for relief, and it was thus undoubtedly "second or successive." Respondent's Ford claim was also "presented" in both his March 1993 and his May 1997 habeas applications. To "present" is "to bring or introduce into the presence of someone" or "to lay (as a charge) before a court as an object of inquiry." Webster's Ninth New Collegiate Dictionary 930 (1991). Respondent clearly "presented" his Ford claim in both his 1993 and his 1997 habeas applications, for in each he introduced to the District Court his argument that he is not competent to be executed. Under the plain meaning of the statute, therefore, respondent's Ford claim was a "claim presented in a second or successive habeas corpus application that was presented in a prior application." 2244(b)(1). The reasons offered by the Court for disregarding the plain language of the statute are unpersuasive. Conceding that "[t]his may have been the second time that respondent had asked the federal courts to provide relief on his Ford claim," ante, at 643, the Court nevertheless concludes that respondent has really filed only "one application for habeas *650 relief," The District Court, however, did not hold respondent's Ford claim in abeyance when it denied his March 1993 habeas petition, so that claim was no longer before the District Court in May 1997. At best, then, respondent's May 1997 filing was an effort to reopen his Ford claim. But that filing (which is most definitely an "application") is subject to the statutory requirements for second or successive habeas applications. As we have recently stated in a closely related context: "[A] prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application for purposes of 2244(b). Otherwise, petitioners could evade the bar against relitigation of claims presented in a prior application, 2244(b)(1), or the bar against litigation of claims not presented in a prior application, 2244(b)(2)." Cal- deron v. Thompson, ante, at 553. In just the same way, habeas petitioners cannot be permitted to evade 2244(b)'s prohibitions simply by moving to reopen claims already presented in a prior habeas application. The Court also reasons that respondent's "Ford claim here—previously dismissed as premature—should be treated in the same manner as the claim of a petitioner who returns to a federal habeas court after exhausting state remedies," for "in both situations, the habeas petitioner does not receive an adjudication of his claim." Ante, at 644, 645. Implicit in the Court's reasoning is its assumption that a prisoner whose habeas petition has been dismissed for failure to exhaust state remedies, and who then exhausts those remedies and returns to federal court, has not then filed a "second or successive habeas corpus application." 2244(b)(1). To be sure, "none of our cases ha[s] ever suggested" that a prisoner in such a situation was filing a successive petition. See ante, at 644. But that is because, before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 *651 (AEDPA), a federal court could grant relief on a claim in a second or successive application so long as the ground for relief had not already been "presented and determined, " 28 U.S. C. 2244(a) or "adjudicated," 2244(b), in a previous application. Claims presented in a petition dismissed for failure to exhaust are neither "determined" nor "adjudicated." Thus, the preAEDPA practice of permitting petitioners to raise claims already presented in applications dismissed for failure to exhaust says nothing about whether those later applications were considered second or successive. Even if the Court were correct that such an application would not have been considered second or successive, such a case is altogether different from this case, in which only one of many claims was not adjudicated. In the former situation, the federal court dismisses the unexhausted petition without prejudice, see so it could be argued that the petition should be treated as if it had never been filed. In contrast, when a court addresses a petition and adjudicates some of the claims presented in it, that petition is certainly an "application," and any future application must be "second or successive."[1] Otherwise, the court would have adjudicated the merits of claims that had not been presented in an "application."[2] Ultimately, the Court's holding is driven by what it sees as the "far reaching and seemingly perverse" implications for federal habeas practice of a literal reading of the statute. *652 Ante, at 644. Such concerns are not, in my view, sufficient to override the statute's plain meaning. And to the extent concerns about habeas practice motivate the Court's decision, it bears repeating that federal habeas corpus is a statutory right and that this Court, not Congress, has expanded the availability of the writ. Before this judicial expansion, a prisoner seeking a writ of habeas corpus was permitted to challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody. See A Ford claim obviously does not present such a challenge.[3] A statute that has the effect of precluding adjudication of a claim that for most of our Nation's history would have been considered noncognizable on habeas can hardly be described as "perverse." Accordingly, whether one considers respondent's March 1993 federal habeas petition to have been his first habeas application—because his three previous applications had been dismissed for failure to exhaust—or his fourth —because respondent had already filed three previous habeas applications by that time—his May 1997 request for relief was undoubtedly either a "second" (following his first) or "successive" (following his fourth) habeas application. Respondent's Ford claim, presented in this second or successive application, should have been dismissed as a "claim presented in a prior application." 2244(b)(1).

Justice Thomas

majority

Pierce County v. Guillen

2003-01-14

https://www.courtlistener.com/opinion/122252/pierce-county-v-guillen/

https://www.courtlistener.com/api/rest/v3/clusters/122252/

2002-013

We address in this case whether 23 U.S. C. § 409, which protects information "compiled or collected" in connection *133 with certain federal highway safety programs from being discovered or admitted in certain federal or state trials, is a valid exercise of Congress' authority under the Constitution. I A Beginning with the Highway Safety Act of 1966, Congress has endeavored to improve the safety of our Nation's highways by encouraging closer federal and state cooperation with respect to road improvement projects. To that end, Congress has adopted several programs to assist the States in identifying highways in need of improvements and in funding those improvements. See, e. g., 23 U.S. C. §§ 130 (Railway-Highway Crossings), 144 (Highway Bridge Replacement and Rehabilitation Program), and 152 (Hazard Elimination Program). Of relevance to this case is the Hazard Elimination Program (Program) which provides state and local governments with funding to improve the most dangerous sections of their roads. To be eligible for funds under the Program, a state or local government must undertake a thorough evaluation of its public roads. Specifically, § 152(a)(1) requires them to "conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists, bicyclists, and pedestrians, assign priorities for the correction of such locations, sections, and elements, and establish and implement a schedule of projects for their improvement." Not long after the adoption of the Program, the Secretary of Transportation reported to Congress that the States objected to the absence of any confidentiality with respect to their compliance measures under § 152. H. R. Doc. No. 94-366, p. 36 (1976). According to the Secretary's report, *134 the States feared that diligent efforts to identify roads eligible for aid under the Program would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made. Ibid. In 1983, concerned that the States' reluctance to be forthcoming and thorough in their data collection efforts undermined the Program's effectiveness, the United States Department of Transportation (DOT) recommended the adoption of legislation prohibiting the disclosure of information compiled in connection with the Program. See Brief for United States as Amicus Curiae in Alabama Highway Dept. v. Boone, O. T. 1991, No. 90-1412, p. 10, cert. denied, 502 U.S. 937 (1991). To address the concerns expressed by the States and the DOT, in 1987, Congress adopted 23 U.S. C. § 409, which provided: "Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled for the purpose of identifying[,] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be admitted into evidence in Federal or State court or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data." Surface Transportation and Uniform Relocation Assistance Act of 1987, § 132, 101 Stat. 170. The proper scope of § 409 became the subject of some dispute among the lower courts. Some state courts, for example, concluded that § 409 addressed only the admissibility of relevant documents at trial and did not apply to pretrial discovery. *135 According to these courts, although information compiled for § 152 purposes would be inadmissible at trial, it nevertheless remained subject to discovery. See, e. g., Ex parte Alabama Highway Dept., 572 So. 2d 389 (Ala. 1990), cert. denied sub nom. Alabama Highway Dept. v. Boone, 502 U.S. 937 (1991); Light v. New York, 149 Misc. 2d 75, 80, 560 N. Y. S. 2d 962, 965 (Ct. Cl. 1990); Indiana Dept. of Transp. v. Overton, 555 N.E.2d 510, 512 (Ind. App. 1990). Other state courts reasoned that § 409 protected only materials actually generated by a governmental agency for § 152 purposes, and documents collected by that agency to prepare its § 152 funding application remained both admissible and discoverable. See, e. g., Wiedeman v. Dixie Elec. Membership Corp., 627 So. 2d 170, 173 (La. 1993), cert. denied, 511 U.S. 1127 (1994). See also, e. g., Southern Pacific Transp. Co. v. Yarnell, 181 Ariz. 316, 319-320, 890 P.2d 611, 614-615, cert. denied, 516 U.S. 937 (1995) (applying the same rule in the context of the Railway-Highway Crossings program); Tardy v. Norfolk Southern Corp., 103 Ohio App. 3d 372, 378-379, 659 N.E.2d 817, 820-821 (same), appeal not allowed, 74 Ohio St. 3d 1408, 655 N.E.2d 187 (1995) (Table). Responding to these developments, Congress amended § 409 in two ways. In 1991, Congress expressly made the statute applicable to pretrial discovery, see Intermodal Surface Transportation Efficiency Act of 1991, § 1035(a), 105 Stat. 1978, and in 1995, Congress added the phrase "or collected" after the word "compiled," National Highway System Designation Act of 1995, § 323, 109 Stat. 591. As amended, § 409 now reads: "Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction *136 improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data." B Ignacio Guillen's wife, Clementina Guillen-Alejandre, died on July 5, 1996, in an automobile accident at the intersection of 168th Street East and B Street East (168/B intersection), in Pierce County, Washington. Several months before the accident, petitioner had requested § 152 funding for this intersection, but the request had been denied. Petitioner renewed its application for funding on April 3, 1996, and the second request was approved on July 26, 1996, only three weeks after the accident occurred. Beginning on August 16, 1996, counsel for respondents sought to obtain from petitioner information about accidents that had occurred at the 168/B intersection.[1] Petitioner declined to provide any responsive information, asserting that any relevant documents were protected by § 409. After informal efforts failed to resolve this discovery dispute, respondents turned to the Washington courts. Respondents first filed an action alleging that petitioner's refusal to disclose the relevant documents violated the *137 State's Public Disclosure Act (PDA).[2] The trial court granted summary judgment in favor of respondents and ordered petitioner to disclose five documents[3] and pay respondents' attorney's fees. Petitioner appealed. While the appeal in the PDA action was pending, respondents filed a separate action, asserting that petitioner had been negligent in failing to install proper traffic controls at the 168/B intersection. In connection with the tort action, respondents served petitioner with interrogatories seeking information regarding accidents that had occurred at the 168/B intersection. Petitioner refused to comply with the discovery request, once again relying on § 409. Respondents successfully sought an order to compel, and petitioner moved for discretionary appellate review of the trial judge's interlocutory order. The Washington Court of Appeals *138 granted the motion and consolidated the appeal in the tort case with the appeal in the PDA action. On review, the Washington Court of Appeals in large part affirmed the decisions below. In interpreting § 409, the court distinguished between an agency that collects or compiles information for purposes unrelated to § 152 and one that collects and compiles information pursuant to § 152. In the court's view, documents held by the first agency would not be protected by § 409, even if they subsequently were used for § 152 purposes, whereas documents held by the second agency would be protected, so long as their collection or compilation was the result of § 152 efforts. Applying these principles, the court concluded that only one of the documents at issue in the PDA case — the draft memorandum by the county's public works director, see n. 3, supra — was protected by § 409 because it had been prepared for § 152 purposes. The rest were not protected because respondents "carefully requested reports in the hands of the sheriff or other law enforcement agencies, not reports or data `collected or compiled' by the Public Works Department." 96 Wash. App. 862, 873, 982 P.2d 123, 129 (1999). The appellate court also expressed doubt about the constitutionality of § 409 as applied in state courts, but decided not to resolve the question because it was not raised. Id., at 875, n. 26, 982 P.2d, at 130, n. 26. Petitioner appealed once again. The Washington Supreme Court's decision followed a three-step analysis. The court first determined that disclosure of the information respondents sought under both the PDA and state discovery rules would be appropriate only if the materials requested by respondents were not protected by § 409. Second, examining the scope of § 409, the Washington Supreme Court rejected, as "unsound in principle and unworkable in practice," 144 Wash. 2d 696, 727, 31 P.3d 628, 646 (2001), the appellate court's view that § 409 drew a distinction between documents "as held by" the Public Works Department *139 and documents "as held by" the county sheriff. Rather, it reasoned that § 409, as amended in 1995, purported to protect from disclosure any documents prepared for state and local purposes, so long as those documents were also collected for § 152 purposes. In the court's view, the statute did not turn on the identity of the custodian of the document at issue. Having so construed § 409, the court proceeded to consider whether the adoption of the 1995 amendment to § 409 was a proper exercise of Congress' powers under the Spending, Commerce, and Necessary and Proper Clauses of Article I of the United States Constitution. With respect to the Spending Clause, the court found that "barring the admissibility and discovery in state court of accident reports and other traffic and accident materials and `raw data' that were originally prepared for routine state and local purposes, simply because they are `collected' for, among other reasons, federal purposes pursuant to a federal statute" did not reasonably serve any "valid federal interest in the operation of the federal safety enhancement program." Id., at 737, 31 P.3d, at 651. With respect to the Commerce Clause, the court concluded that § 409 was not an "integral part" of the regulation of the federal-aid highway system and, thus, could not be upheld under Hodel v. Indiana, 452 U.S. 314 (1981). 144 Wash. 2d, at 742, 31 P.3d, at 654. Finally, with respect to the Necessary and Proper Clause, the court ruled that, although Congress could require state courts to enforce a federal privilege protecting materials "that would not have been created but-for federal mandates such as . . . [§]152," it was "neither `necessary' nor `proper' for Congress in 1995 to extend that privilege to traffic and accident materials and raw data created and collected for state and local purposes, simply because they are also collected and used for federal purposes." Id., at 743, 31 P.3d, at 654-655. In light of its conclusion that the 1995 amendment to § 409 exceeded Congress' power under the Constitution, and, *140 therefore, was not binding on the States, the court held that § 409 protected only information originally created for § 152 purposes. But, rather than determining whether the documents or data at issue in this case would be protected under its reading of § 409, the court vacated the lower court's judgment and remanded the case for the lower courts to consider the record in the first instance.[4] Three justices concurred only in the result. They disagreed with the majority's broad reading of the statute and would have held that § 409 precludes a potential plaintiff only from obtaining information from an agency that collected that information for § 152 purposes. We granted certiorari to resolve the question of the constitutionality of this federal statute, 535 U.S. 1033 (2002), and now reverse. II Before addressing the merits of petitioner's claims, we must first consider whether we have jurisdiction to hear the case. Under 28 U.S. C. § 1257(a), this Court has certiorari jurisdiction to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had . . . where the validity of a . . . statute of the United States is drawn in question . . . on the ground of its being repugnant to the Constitution . . . of the United States." As a general matter, to be reviewed by this Court, a state-court judgment must be final "`as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein.'" Jefferson v. City of Tarrant, 522 U.S. 75, 81 (1997) (quoting Market Street R. Co. v. Railroad Comm'n of Cal., 324 U.S. 548, 551 (1945)). We have acknowledged, however, that certain state-court judgments can be treated as final for jurisdictional purposes, even though further *141 proceedings are to take place in the state courts. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-483 (1975) (outlining four exceptions to the finality rule). See also, e.g., ASARCO Inc. v. Kadish, 490 U.S. 605, 611-612 (1989) (applying the Cox exceptions); Duquesne Light Co. v. Barasch, 488 U.S. 299, 306-307 (1989) (same). Respondents contend the decision below did not result in a final judgment for purposes of § 1257(a) because the Washington Supreme Court remanded the case for further proceedings. They are only partially correct. As we have already described, we have now before us a consolidated case consisting of two separate actions: an action under the State of Washington's Public Disclosure Act and a tort action. Respondents are correct that the decision below does not constitute a final judgment with respect to the tort action. In that case, the Washington Supreme Court resolved only a discovery dispute; it did not determine the final outcome of the litigation. Nor do any of the exceptions outlined in Cox Broadcasting Corp. v. Cohn, supra, apply to the tort action.[5] Accordingly, we dismiss the writ *142 of certiorari with respect to the tort action for want of jurisdiction. We reach a different conclusion regarding the PDA action. In that suit, the Washington Supreme Court was asked to review only the appellate court's ruling that four of the five documents requested by respondents were not protected under § 409 and therefore should be disclosed under the PDA.[6] Because the Washington Supreme Court held the 1995 amendment to § 409 to be invalid—thus, limiting the privilege offered by the statute only to documents originally created for § 152 purposes—the court effectively interpreted § 409 more narrowly than the Court of Appeals. Accordingly, the four documents at issue before the Washington Supreme Court remained unprotected under § 409 and continued to be subject to disclosure under the PDA. As we read the decision below, all that remains to be decided on remand in the PDA action is the amount of attorney's fees to which respondents are entitled. The PDA action, then, falls squarely under the first Cox exception because the Washington Supreme Court's ruling on the federal privilege issue is "conclusive" and "the outcome of further proceedings preordained."[7]Cox Broadcasting Corp., supra, at 479. *143 Therefore, we have jurisdiction to hear the PDA portion of this case. III We turn now to the merits. Petitioner essentially agrees with the Washington Supreme Court's expansive reading of § 409, but argues that the Washington Supreme Court erred in concluding that Congress was without power to enact the 1995 amendment to § 409. Before addressing the constitutional question, however, we must determine the statute's proper scope. A 1 According to petitioner, a document initially prepared and then held by an agency (here the county sheriff) for purposes unrelated to § 152 becomes protected under § 409 when a copy of that document is collected by another agency (here the Public Works Department) for purposes of § 152. Under petitioner's view, for example, an accident report prepared and held by the county sheriff for purposes unrelated to § 152 would become protected under § 409 as soon as a copy of that report is sent to the Public Works Department to be used in connection with petitioner's § 152 funding application. Consequently, a person seeking a copy of the accident report either from the county sheriff or from the Public Works Department would not be able to obtain it.[8] Brief for Petitioner 37-44. *144 Respondents contend that § 409 protects only materials actually created by the agency responsible for seeking federal funding for § 152 purposes. Brief for Respondents 22-23, and n. 2. On their view, if the Public Works Department collects reports of all the accidents that have occurred at a given intersection to prepare its § 152 application, those reports would not be protected by § 409, and a person seeking them from the Public Works Department would be entitled to obtain them. The United States, as intervenor, proposes a third interpretation: § 409 protects all reports, surveys, schedules, lists, or data actually compiled or collected for § 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to § 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point "collected" by another agency for § 152 purposes. Brief for United States 28-36. Respondents concede that this is a defensible reading of the statute. Brief for Respondents 23-24, 25. Under this interpretation, an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under § 409 in the hands of the county sheriff, even though that same report would be protected in the hands of the Public Works Department, so long as the department first obtained the report for § 152 purposes. We agree with the Government's interpretation of the statute. 2 We have often recognized that statutes establishing evidentiary privileges must be construed narrowly because privileges impede the search for the truth. Baldrige v. Shapiro, *145 455 U.S. 345, 360 (1982) ("A statute granting a privilege is to be strictly construed so as `to avoid a construction that would suppress otherwise competent evidence'" (quoting St. Regis Paper Co. v. United States, 368 U.S. 208, 218 (1961)). See also, e.g., University of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990). See generally United States v. Nixon, 418 U.S. 683 (1974). Here, § 409 establishes a privilege; accordingly, to the extent the text of the statute permits, we must construe it narrowly. Of the three interpretations outlined above, respondents' clearly gives the statute the narrowest application. Nevertheless, we decline to adopt it, as that reading would render the 1995 amendment to § 409 (changing the language from "compiled" to "compiled or collected") an exercise in futility. We have said before that, "[w]hen Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Stone v. INS, 514 U.S. 386, 397 (1995). Yet, under respondents' view, § 409 as amended in 1995 would protect from disclosure only information that was already protected before the amendment, i.e., information generated for § 152 purposes. That reading gives the amendment no "real and substantial effect" and, accordingly, cannot be the proper understanding of the statute. Petitioner's reading, by contrast, while permissible, gives the statute too broad of a reach given the language of the statute, thus conflicting with our rule that, when possible, privileges should be construed narrowly. See, e.g., Baldrige, supra, at 360. The interpretation proposed by the Government, however, suffers neither of these faults. It gives effect to the 1995 amendment by making clear that § 409 protects not just the information an agency generates, i.e., compiles, for § 152 purposes, but also any information that an agency collects from other sources for § 152 purposes. And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to *146 § 152 and held by agencies that are not pursuing § 152 objectives. We therefore adopt this interpretation. Our conclusion is reinforced by the history of the 1995 amendment. As we have already noted, the phrase "or collected" was added to § 409 to address confusion among the lower courts about the proper scope of § 409 and to overcome judicial reluctance to protect under § 409 raw data collected for § 152 purposes. See supra, at 134-136. By amending the statute, Congress wished to make clear that § 152 was not intended to be an effort-free tool in litigation against state and local governments. Compare, e.g., Robertson v. Union Pacific R. Co., 954 F.2d 1433, 1435 (CA8 1992) (recognizing that § 409 was intended to "prohibit federally required record-keeping from being used as a `tool ... in private litigation'" (quoting Light v. New York, 149 Misc. 2d 75, 80, 560 N. Y. S. 2d 962, 965 (Ct. Cl. 1990)), with authorities cited supra, at 134-135. However, the text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies. B Having determined that § 409 protects only information compiled or collected for § 152 purposes, and does not protect information compiled or collected for purposes unrelated to § 152, as held by the agencies that compiled or collected that information, we now consider whether § 409 is a proper exercise of Congress' authority under the Constitution. We conclude that it is. It is well established that the Commerce Clause gives Congress authority to "regulate the use of the channels of interstate commerce." United States v. Lopez, 514 U.S. 549, 558 *147 (1995) (citing United States v. Darby, 312 U.S. 100, 114 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)). In addition, under the Commerce Clause, Congress "is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." Lopez, supra, at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911); Perez v. United States, 402 U.S. 146 (1971)). As already discussed, supra, at 133, Congress adopted § 152 to assist state and local governments in reducing hazardous conditions in the Nation's channels of commerce. That effort was impeded, however, by the States' reluctance to comply fully with the requirements of § 152, as such compliance would make state and local governments easier targets for negligence actions by providing would-be plaintiffs a centralized location from which they could obtain much of the evidence necessary for such actions. In view of these circumstances, Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering requirement of § 152 would result in more diligent efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation's roads. Consequently, both the original § 409 and the 1995 amendment can be viewed as legislation aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce. As such, they fall within Congress' Commerce Clause power.[9] Accordingly, the judgment of the Washington *148 Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.[10] It is so ordered.

We address in this case whether 2 US C 409, which protects information "compiled or collected" in connection *1 with certain federal highway safety programs from being discovered or admitted in certain federal or state trials, is a valid exercise of Congress' authority under the Constitution I A Beginning with the Highway Safety Act of 1966, Congress has endeavored to improve the safety of our Nation's highways by encouraging closer federal and state cooperation with respect to road improvement projects To that end, Congress has adopted several programs to assist the States in identifying highways in need of improvements and in funding those improvements See, e g, 2 US C 10 (Railway-Highway Crossings), 144 (Highway Bridge Replacement and Rehabilitation Program), and 152 (Hazard Elimination Program) Of relevance to this case is the Hazard Elimination Program (Program) which provides state and local governments with funding to improve the most dangerous sections of their roads To be eligible for funds under the Program, a state or local government must undertake a thorough evaluation of its public roads Specifically, 152(a)(1) requires them to "conduct and systematically maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists, bicyclists, and pedestrians, assign priorities for the correction of such locations, sections, and elements, and establish and implement a schedule of projects for their improvement" Not long after the adoption of the Program, the Secretary of Transportation reported to Congress that the States objected to the absence of any confidentiality with respect to their compliance measures under 152 H R Doc No 94-66, p 6 (1976) According to the Secretary's report, *14 the States feared that diligent efforts to identify roads eligible for aid under the Program would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made In 198, concerned that the States' reluctance to be forthcoming and thorough in their data collection efforts undermined the Program's effectiveness, the United States Department of Transportation (DOT) recommended the adoption of legislation prohibiting the disclosure of information compiled in connection with the Program See Brief for United States as Amicus Curiae in Alabama Highway O T 1991, No 90-1412, p 10, cert denied, To address the concerns expressed by the States and the DOT, in 1987, Congress adopted 2 US C 409, which provided: "Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled for the purpose of identifying[,] evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 10, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be admitted into evidence in Federal or State court or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data" Surface Transportation and Uniform Relocation Assistance Act of 1987, 12, The proper scope of 409 became the subject of some dispute among the lower courts Some state courts, for example, concluded that 409 addressed only the admissibility of relevant documents at trial and did not apply to pretrial discovery *15 According to these courts, although information compiled for 152 purposes would be inadmissible at trial, it nevertheless remained subject to discovery See, e g, Ex parte Alabama Highway Dept, cert denied sub nom Alabama Highway ; ; Indiana Dept of Other state courts reasoned that 409 protected only materials actually generated by a governmental agency for 152 purposes, and documents collected by that agency to prepare its 152 funding application remained both admissible and discoverable See, e g, cert denied, See also, e g, Southern Pacific Transp ; appeal not allowed, Responding to these developments, Congress amended 409 in two ways In 1991, Congress expressly made the statute applicable to pretrial discovery, see Intermodal Surface Transportation Efficiency Act of 1991, 105(a), and in Congress added the phrase "or collected" after the word "compiled," National Highway System Designation Act of 2, As amended, 409 now reads: "Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 10, 144, and 152 of this title or for the purpose of developing any highway safety construction *16 improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data" B Ignacio Guillen's wife, Clementina Guillen-Alejandre, died on July 5, 1996, in an automobile accident at the intersection of 168th Street East and B Street East (168/B intersection), in Pierce County, Washington Several months before the accident, petitioner had requested 152 funding for this intersection, but the request had been denied Petitioner renewed its application for funding on April 1996, and the second request was approved on July 1996, only three weeks after the accident occurred Beginning on August 16, 1996, counsel for respondents sought to obtain from petitioner information about accidents that had occurred at the 168/B intersection[1] Petitioner declined to provide any responsive information, asserting that any relevant documents were protected by 409 After informal efforts failed to resolve this discovery dispute, respondents turned to the Washington courts Respondents first filed an action alleging that petitioner's refusal to disclose the relevant documents violated the *17 State's Public Disclosure Act (PDA)[2] The trial court granted summary judgment in favor of respondents and ordered petitioner to disclose five documents[] and pay respondents' attorney's fees Petitioner appealed While the appeal in the PDA action was pending, respondents filed a separate action, asserting that petitioner had been negligent in failing to install proper traffic controls at the 168/B intersection In connection with the tort action, respondents served petitioner with interrogatories seeking information regarding accidents that had occurred at the 168/B intersection Petitioner refused to comply with the discovery request, once again relying on 409 Respondents successfully sought an order to compel, and petitioner moved for discretionary appellate review of the trial judge's interlocutory order The Washington Court of Appeals *18 granted the motion and consolidated the appeal in the tort case with the appeal in the PDA action On review, the Washington Court of Appeals in large part affirmed the decisions below In interpreting 409, the court distinguished between an agency that collects or compiles information for purposes unrelated to 152 and one that collects and compiles information pursuant to 152 In the court's view, documents held by the first agency would not be protected by 409, even if they subsequently were used for 152 purposes, whereas documents held by the second agency would be protected, so long as their collection or compilation was the result of 152 efforts Applying these principles, the court concluded that only one of the documents at issue in the PDA case — the draft memorandum by the county's public works director, see n — was protected by 409 because it had been prepared for 152 purposes The rest were not protected because respondents "carefully requested reports in the hands of the sheriff or other law enforcement agencies, not reports or data `collected or compiled' by the Public Works Department" 87, 982 P2d 12, The appellate court also expressed doubt about the constitutionality of 409 as applied in state courts, but decided not to resolve the question because it was not raised 982 P2d, at 10, n Petitioner appealed once again The Washington Supreme Court's decision followed a three-step analysis The court first determined that disclosure of the information respondents sought under both the PDA and state discovery rules would be appropriate only if the materials requested by respondents were not protected by 409 Second, examining the scope of 409, the Washington Supreme Court rejected, as "unsound in principle and unworkable in practice," 1 Pd 628, the appellate court's view that 409 drew a distinction between documents "as held by" the Public Works Department *19 and documents "as held by" the county sheriff Rather, it reasoned that 409, as amended in purported to protect from disclosure any documents prepared for state and local purposes, so long as those documents were also collected for 152 purposes In the court's view, the statute did not turn on the identity of the custodian of the document at issue Having so construed 409, the court proceeded to consider whether the adoption of the amendment to 409 was a proper exercise of Congress' powers under the Spending, Commerce, and Necessary and Proper Clauses of Article I of the United States Constitution With respect to the Spending Clause, the court found that "barring the admissibility and discovery in state court of accident reports and other traffic and accident materials and `raw data' that were originally prepared for routine state and local purposes, simply because they are `collected' for, among other reasons, federal purposes pursuant to a federal statute" did not reasonably serve any "valid federal interest in the operation of the federal safety enhancement program" at 77, 1 Pd, at 651 With respect to the Commerce Clause, the court concluded that 409 was not an "integral part" of the regulation of the federal-aid highway system and, thus, could not be upheld under 452 US 14 1 Pd, at 654 Finally, with respect to the Necessary and Proper Clause, the court ruled that, although Congress could require state courts to enforce a federal privilege protecting materials "that would not have been created but-for federal mandates such as []152," it was "neither `necessary' nor `proper' for Congress in to extend that privilege to traffic and accident materials and raw data created and collected for state and local purposes, simply because they are also collected and used for federal purposes" at 74, 1 Pd, at 654-655 In light of its conclusion that the amendment to 409 exceeded Congress' power under the Constitution, and, *140 therefore, was not binding on the States, the court held that 409 protected only information originally created for 152 purposes But, rather than determining whether the documents or data at issue in this case would be protected under its reading of 409, the court vacated the lower court's judgment and remanded the case for the lower courts to consider the record in the first instance[4] Three justices concurred only in the result They disagreed with the majority's broad reading of the statute and would have held that 409 precludes a potential plaintiff only from obtaining information from an agency that collected that information for 152 purposes We granted certiorari to resolve the question of the constitutionality of this federal statute, 55 US 10 and now reverse II Before addressing the merits of petitioner's claims, we must first consider whether we have jurisdiction to hear the case Under 28 US C 1257(a), this Court has certiorari jurisdiction to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had where the validity of a statute of the United States is drawn in question on the ground of its being repugnant to the Constitution of the United States" As a general matter, to be reviewed by this Court, a state-court judgment must be final "`as an effective determination of the litigation and not of merely interlocutory or intermediate steps therein'" Jefferson v City of Tarrant, 522 US 75, ) We have acknowledged, however, that certain state-court judgments can be treated as final for jurisdictional purposes, even though further *141 proceedings are to take place in the state courts Cox Broadcasting Corp v 420 US 469, 477-48 See also, eg, ASARCO Inc v Kadish, 490 US 605, ; Duquesne Light Co v Barasch, 488 US 299, 06-07 Respondents contend the decision below did not result in a final judgment for purposes of 1257(a) because the Washington Supreme Court remanded the case for further proceedings They are only partially correct As we have already described, we have now before us a consolidated case consisting of two separate actions: an action under the State of Washington's Public Disclosure Act and a tort action Respondents are correct that the decision below does not constitute a final judgment with respect to the tort action In that case, the Washington Supreme Court resolved only a discovery dispute; it did not determine the final outcome of the litigation Nor do any of the exceptions outlined in Cox Broadcasting Corp v apply to the tort action[5] Accordingly, we dismiss the writ *142 of certiorari with respect to the tort action for want of jurisdiction We reach a different conclusion regarding the PDA action In that suit, the Washington Supreme Court was asked to review only the appellate court's ruling that four of the five documents requested by respondents were not protected under 409 and therefore should be disclosed under the PDA[6] Because the Washington Supreme Court held the amendment to 409 to be invalid—thus, limiting the privilege offered by the statute only to documents originally created for 152 purposes—the court effectively interpreted 409 more narrowly than the Court of Appeals Accordingly, the four documents at issue before the Washington Supreme Court remained unprotected under 409 and continued to be subject to disclosure under the PDA As we read the decision below, all that remains to be decided on remand in the PDA action is the amount of attorney's fees to which respondents are entitled The PDA action, then, falls squarely under the first Cox exception because the Washington Supreme Court's ruling on the federal privilege issue is "conclusive" and "the outcome of further proceedings preordained"[7]Cox Broadcasting Corp, *14 Therefore, we have jurisdiction to hear the PDA portion of this case III We turn now to the merits Petitioner essentially agrees with the Washington Supreme Court's expansive reading of 409, but argues that the Washington Supreme Court erred in concluding that Congress was without power to enact the amendment to 409 Before addressing the constitutional question, however, we must determine the statute's proper scope A 1 According to petitioner, a document initially prepared and then held by an agency (here the county sheriff) for purposes unrelated to 152 becomes protected under 409 when a copy of that document is collected by another agency (here the Public Works Department) for purposes of 152 Under petitioner's view, for example, an accident report prepared and held by the county sheriff for purposes unrelated to 152 would become protected under 409 as soon as a copy of that report is sent to the Public Works Department to be used in connection with petitioner's 152 funding application Consequently, a person seeking a copy of the accident report either from the county sheriff or from the Public Works Department would not be able to obtain it[8] Brief for Petitioner 7-44 *144 Respondents contend that 409 protects only materials actually created by the agency responsible for seeking federal funding for 152 purposes Brief for Respondents 22-2, and n 2 On their view, if the Public Works Department collects reports of all the accidents that have occurred at a given intersection to prepare its 152 application, those reports would not be protected by 409, and a person seeking them from the Public Works Department would be entitled to obtain them The United States, as intervenor, proposes a third interpretation: 409 protects all reports, surveys, schedules, lists, or data actually compiled or collected for 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point "collected" by another agency for 152 purposes Brief for United States 28-6 Respondents concede that this is a defensible reading of the statute Brief for Respondents 2-24, 25 Under this interpretation, an accident report collected only for law enforcement purposes and held by the county sheriff would not be protected under 409 in the hands of the county sheriff, even though that same report would be protected in the hands of the Public Works Department, so long as the department first obtained the report for 152 purposes We agree with the Government's interpretation of the statute 2 We have often recognized that statutes establishing evidentiary privileges must be construed narrowly because privileges impede the search for the truth v Shapiro, *145 455 US 45, 60 ) See also, eg, University of Pennsylvania v EEOC, 49 US 182, See generally United States v Nixon, 418 US 68 Here, 409 establishes a privilege; accordingly, to the extent the text of the statute permits, we must construe it narrowly Of the three interpretations outlined above, respondents' clearly gives the statute the narrowest application Nevertheless, we decline to adopt it, as that reading would render the amendment to 409 (changing the language from "compiled" to "compiled or collected") an exercise in futility We have said before that, "[w]hen Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect" Stone v INS, 514 US 86, 97 Yet, under respondents' view, 409 as amended in would protect from disclosure only information that was already protected before the amendment, ie, information generated for 152 purposes That reading gives the amendment no "real and substantial effect" and, accordingly, cannot be the proper understanding of the statute Petitioner's reading, by contrast, while permissible, gives the statute too broad of a reach given the language of the statute, thus conflicting with our rule that, when possible, privileges should be construed narrowly See, eg, at 60 The interpretation proposed by the Government, however, suffers neither of these faults It gives effect to the amendment by making clear that 409 protects not just the information an agency generates, ie, compiles, for 152 purposes, but also any information that an agency collects from other sources for 152 purposes And, it also takes a narrower view of the privilege by making it inapplicable to information compiled or collected for purposes unrelated to *146 152 and held by agencies that are not pursuing 152 objectives We therefore adopt this interpretation Our conclusion is reinforced by the history of the amendment As we have already noted, the phrase "or collected" was added to 409 to address confusion among the lower courts about the proper scope of 409 and to overcome judicial reluctance to protect under 409 raw data collected for 152 purposes See at 14-16 By amending the statute, Congress wished to make clear that 152 was not intended to be an effort-free tool in litigation against state and local governments Compare, eg, Robertson v Union Pacific R Co, 954 F2d 14, 145 ), with authorities at 14-15 However, the text of 409 evinces no intent to make plaintiffs worse off than they would have been had 152 funding never existed Put differently, there is no reason to interpret 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to 152, held by government agencies not involved in administering 152, if, before 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies B Having determined that 409 protects only information compiled or collected for 152 purposes, and does not protect information compiled or collected for purposes unrelated to 152, as held by the agencies that compiled or collected that information, we now consider whether 409 is a proper exercise of Congress' authority under the Constitution We conclude that it is It is well established that the Commerce Clause gives Congress authority to "regulate the use of the channels of interstate commerce" United States v 514 US 549, ; Heart of Atlanta Motel, Inc v United States, 79 US 241, ) In addition, under the Commerce Clause, Congress "is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities" at 558 ; Southern R Co v United States, 222 US 20 ; Perez v United States, 402 US 146 ) As already at 1, Congress adopted 152 to assist state and local governments in reducing hazardous conditions in the Nation's channels of commerce That effort was impeded, however, by the States' reluctance to comply fully with the requirements of 152, as such compliance would make state and local governments easier targets for negligence actions by providing would-be plaintiffs a centralized location from which they could obtain much of the evidence necessary for such actions In view of these circumstances, Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering requirement of 152 would result in more diligent efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation's roads Consequently, both the original 409 and the amendment can be viewed as legislation aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce As such, they fall within Congress' Commerce Clause power[9] Accordingly, the judgment of the Washington *148 Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion[10] It is so ordered

Justice Kennedy

majority

United States v. Johnson

2000-03-21

https://www.courtlistener.com/opinion/118343/united-states-v-johnson/

https://www.courtlistener.com/api/rest/v3/clusters/118343/

1999-035

An offender had been serving time in federal prison for multiple felonies when two of his convictions were declared invalid. As a result, he had served too much prison time and was at once set free, but a term of supervised release was yet to be served on the remaining convictions. The question becomes whether the excess prison time should be credited to the supervised release term, reducing its length. Bound by the text of the controlling statute, 18 U.S. C. § 3624(e), we hold that the supervised release term remains unaltered. Respondent Roy Lee Johnson was convicted in 1990 on two counts of possession with an intent to distribute controlled substances, 84 Stat. 1260, 21 U.S. C. § 841(a), on two counts of use of a firearm in connection with a drug trafficking crime, 18 U.S. C. § 924(c) (1994 ed. and Supp. IV), *55 and on one count of possession of a firearm by a convicted felon, § 922(g). He received a sentence of 171 months' imprisonment, consisting of three concurrent 51-month terms on the § 841(a) and § 922(g) counts, to be followed by two consecutive 60-month terms on the § 924(c) counts. In addition, the District Court imposed a mandatory 3-year term of supervised release for the drug possession offenses. See 21 U.S. C. § 841(b)(1)(C) (1994 ed., Supp. III). The Court of Appeals, though otherwise affirming respondent's convictions and sentence, concluded the District Court erred in sentencing him to consecutive terms of imprisonment for the two § 924(c) firearm offenses. United States v. Johnson, 25 F.3d 1335, 1337-1338 (CA6 1994) (en banc). On remand the District Court modified the prisoner's sentence to a term of 111 months. After our decision in Bailey v. United States, 516 U.S. 137 (1995), respondent filed a motion under 28 U.S. C. § 2255 to vacate his § 924(c) convictions, and the Government did not oppose. On May 2, 1996, the District Court vacated those convictions, modifying respondent's sentence to 51 months. He had already served more than that amount of time, so the District Court ordered his immediate release. His term of supervised release then went into effect. This dispute concerns its length. In June 1996, respondent filed a motion requesting the District Court to reduce his supervised release term by 2.5 years, the extra time served on the vacated § 924(c) convictions. The District Court denied relief, explaining that pursuant to 18 U.S. C. § 3624(e) the supervised release commenced upon respondent's actual release from incarceration, not before. Granting respondent credit, the court observed, would undermine Congress' aim of using supervised release to assist convicted felons in their transitions to community life. A divided Court of Appeals reversed. 154 F.3d 569 (CA6 1998). The court accepted respondent's argument that his *56 term of supervised release commenced not on the day he left prison confines but earlier, when his lawful term of imprisonment expired. Id., at 571. Awarding respondent credit for the extra time served, the court further concluded, would provide meaningful relief because supervised release, while serving rehabilitative purposes, is also "punitive in nature." Ibid. Judge Gilman dissented, agreeing with the position of the District Court. Id., at 572-573. The Courts of Appeals have reached differing conclusions on the question presented. Compare United States v. Blake, 88 F.3d 824, 825 (CA9 1996) (supervised release commences on the date defendants "should have been released, rather than on the dates of their actual release"), with United States v. Jeanes, 150 F.3d 483, 485 (CA5 1998) (supervised release cannot run during any period of imprisonment); United States v. Joseph, 109 F.3d 34 (CA1 1997) (same); United States v. Douglas, 88 F.3d 533, 534 (CA8 1996) (same). We granted certiorari to resolve the question, 527 U.S. 1062 (1999), and we now reverse. Section 3583(a) of Title 18 authorizes, and in some instances mandates, sentencing courts to order supervised release terms following imprisonment. On the issue presented for review—whether a term of supervised release begins on the date of actual release from incarceration or on an earlier date due to a mistaken interpretation of federal law—the language of § 3624(e) controls. The statute provides in relevant part: "A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised *57 release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." The quoted language directs that a supervised release term does not commence until an individual "is released from imprisonment." There can be little question about the meaning of the word "release" in the context of imprisonment. It means "[t]o loosen or destroy the force of; to remove the obligation or effect of; hence to alleviate or remove; . . . [t]o let loose again; to set free from restraint, confinement, or servitude; to set at liberty; to let go." Webster's New International Dictionary 2103 (2d ed. 1949). As these definitions illustrate, the ordinary, commonsense meaning of release is to be freed from confinement. To say respondent was released while still imprisoned diminishes the concept the word intends to convey. The first sentence of § 3624(e) supports our construction. A term of supervised release comes "after imprisonment," once the prisoner is "released by the Bureau of Prisons to the supervision of a probation officer." Supervised release does not run while an individual remains in the custody of the Bureau of Prisons. The phrase "on the day the person is released," in the second sentence of § 3624(e), suggests a strict temporal interpretation, not some fictitious or constructive earlier time. The statute does not say "on the day the person is released or on the earlier day when he should have been released." Indeed, the third sentence admonishes that "supervised release does not run during any period in which the person is imprisoned." The statute does provide for concurrent running of supervised release in specific cases. After the operative phrase "released from imprisonment," § 3624(e) requires the concurrent *58 running of a term of supervised release with terms of probation, parole, or with other, separate terms of supervised release. The statute instructs that concurrency is permitted not for prison sentences but only for those other types of sentences given specific mention. The next sentence in the statute does address a prison term and does allow concurrent counting, but only for prison terms less than 30 days in length. When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference, and the one we adopt here, is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth. The 30-day exception finds no application in this case; each of respondent's sentences, to which the term of supervised release attached, exceeded that amount of time. Finally, § 3583(e)(3) does not have a substantial bearing on the interpretive issue, for this directive addresses instances where conditions of supervised release have been violated, and the court orders a revocation. Our conclusion finds further support in 18 U.S. C. § 3583(a), which authorizes the imposition of "a term of supervised release after imprisonment." This provision, too, is inconsistent with respondent's contention that confinement and supervised release can run at the same time. The statute's direction is clear and precise. Release takes place on the day the prisoner in fact is freed from confinement. The Court of Appeals reasoned that reduction of respondent's supervised release term was a necessary implementation of § 3624(a), which provides that "[a] prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment . . . ." All concede respondent's term of imprisonment should have ended earlier than it did. It does not follow, however, that the term of supervised release commenced, as a matter of law, once he completed serving his lawful sentences. It is true the prison term and the release term are related, for the latter cannot begin until the former expires. Though interrelated, *59 the terms are not interchangeable. The Court of Appeals was mistaken in holding otherwise, and the text of § 3624(e) cannot accommodate the rule the Court of Appeals derived. Supervised release has no statutory function until confinement ends. Cf. United States v. Granderson, 511 U.S. 39, 50 (1994) (observing that "terms of supervised release . . . follow up prison terms"). The rule of lenity does not alter the analysis. Absent ambiguity, the rule of lenity is not applicable to guide statutory interpretation. Cf. Gozlon-Peretz v. United States, 498 U.S. 395, 410 (1991). While the text of § 3624(e) resolves the case, we observe that our conclusion accords with the statute's purpose and design. The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration. See § 3553(a)(2)(D); United States Sentencing Commission, Guidelines Manual §§ 5D1.3(c), (d), (e) (Nov. 1998); see also S. Rep. No. 98-225, p. 124 (1983) (declaring that "the primary goal [of supervised release] is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release"). Sentencing courts, in determining the conditions of a defendant's supervised release, are required to consider, among other factors, "the nature and circumstances of the offense and the history and characteristics of the defendant," "the need . . . to afford adequate deterrence to criminal conduct; . . . to protect the public from further crimes of the defendant; and . . . to provide the defendant with needed educational or vocational training, medical care, or other correctional *60 treatment." 18 U.S. C. § 3553(a). In the instant case, the transition assistance ordered by the trial court required respondent, among other conditions, to avoid possessing or transporting firearms and to participate in a drug dependency treatment program. These conditions illustrate that supervised release, unlike incarceration, provides individuals with post confinement assistance. Cf. Gozlon-Peretz, supra, at 407 (describing "[s]upervised release [a]s a unique method of post confinement supervision invented by the Congress for a series of sentencing reforms"). The Court of Appeals erred in treating respondent's time in prison as interchangeable with his term of supervised release. There can be no doubt that equitable considerations of great weight exist when an individual is incarcerated beyond the proper expiration of his prison term. The statutory structure provides a means to address these concerns in large part. The trial court, as it sees fit, may modify an individual's conditions of supervised release. § 3583(e)(2). Furthermore, the court may terminate an individual's supervised release obligations "at any time after the expiration of one year . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." § 3583(e)(1). Respondent may invoke § 3583(e)(2) in pursuit of relief; and, having completed one year of supervised release, he may also seek relief under § 3583(e)(1). The statute, by its own necessary operation, does not reduce the length of a supervised release term by reason of excess time served in prison. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

An offender had been serving time in federal prison for multiple felonies when two of his convictions were declared invalid. As a result, he had served too much prison time and was at once set free, but a term of supervised release was yet to be served on the remaining convictions. The question becomes whether the excess prison time should be credited to the supervised release term, reducing its length. Bound by the text of the controlling statute, 18 U.S. C. 3624(e), we hold that the supervised release term remains unaltered. Respondent Roy Lee Johnson was convicted in 1990 on two counts of possession with an intent to distribute controlled substances, 21 U.S. C. 841(a), on two counts of use of a firearm in connection with a drug trafficking crime, 18 U.S. C. 924(c) ( ed. and Supp. IV), *55 and on one count of possession of a firearm by a convicted felon, 922(g). He received a sentence of 171 months' imprisonment, consisting of three concurrent 51-month terms on the 841(a) and 922(g) counts, to be followed by two consecutive 60-month terms on the 924(c) counts. In addition, the District Court imposed a mandatory 3-year term of supervised release for the drug possession offenses. See 21 U.S. C. 841(b)(1)(C) ( ed., Supp. III). The Court of Appeals, though otherwise affirming respondent's convictions and sentence, concluded the District Court erred in sentencing him to consecutive terms of imprisonment for the two 924(c) firearm offenses. United On remand the District Court modified the prisoner's sentence to a term of 111 months. After our decision in respondent filed a motion under 28 U.S. C. 2255 to vacate his 924(c) convictions, and the Government did not oppose. On May 2, the District Court vacated those convictions, modifying respondent's sentence to 51 months. He had already served more than that amount of time, so the District Court ordered his immediate release. His term of supervised release then went into effect. This dispute concerns its length. In June respondent filed a motion requesting the District Court to reduce his supervised release term by 2.5 years, the extra time served on the vacated 924(c) convictions. The District Court denied relief, explaining that pursuant to 18 U.S. C. 3624(e) the supervised release commenced upon respondent's actual release from incarceration, not before. Granting respondent credit, the court observed, would undermine Congress' aim of using supervised release to assist convicted felons in their transitions to community life. A divided Court of Appeals reversed. The court accepted respondent's argument that his *56 term of supervised release commenced not on the day he left prison confines but earlier, when his lawful term of imprisonment expired. Awarding respondent credit for the extra time served, the court further concluded, would provide meaningful relief because supervised release, while serving rehabilitative purposes, is also "punitive in nature." Judge Gilman dissented, agreeing with the position of the District Court. The Courts of Appeals have reached differing conclusions on the question presented. Compare United with United ; United ; United We granted certiorari to resolve the question, and we now reverse. Section 3583(a) of Title 18 authorizes, and in some instances mandates, sentencing courts to order supervised release terms following imprisonment. On the issue presented for review—whether a term of supervised release begins on the date of actual release from incarceration or on an earlier date due to a mistaken interpretation of federal law—the language of 3624(e) controls. The statute provides in relevant part: "A prisoner whose sentence includes a term of supervised release after imprisonment shall be released by the Bureau of Prisons to the supervision of a probation officer who shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court. The term of supervised release commences on the day the person is released from imprisonment and runs concurrently with any Federal, State, or local term of probation or supervised *57 release or parole for another offense to which the person is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days." The quoted language directs that a supervised release term does not commence until an individual "is released from imprisonment." There can be little question about the meaning of the word "release" in the context of imprisonment. It means "[t]o loosen or destroy the force of; to remove the obligation or effect of; hence to alleviate or remove; [t]o let loose again; to set free from restraint, confinement, or servitude; to set at liberty; to let go." Webster's New International Dictionary 2103 (2d ed. 1949). As these definitions illustrate, the ordinary, commonsense meaning of release is to be freed from confinement. To say respondent was released while still imprisoned diminishes the concept the word intends to convey. The first sentence of 3624(e) supports our construction. A term of supervised release comes "after imprisonment," once the prisoner is "released by the Bureau of Prisons to the supervision of a probation officer." Supervised release does not run while an individual remains in the custody of the Bureau of Prisons. The phrase "on the day the person is released," in the second sentence of 3624(e), suggests a strict temporal interpretation, not some fictitious or constructive earlier time. The statute does not say "on the day the person is released or on the earlier day when he should have been released." Indeed, the third sentence admonishes that "supervised release does not run during any period in which the person is imprisoned." The statute does provide for concurrent running of supervised release in specific cases. After the operative phrase "released from imprisonment," 3624(e) requires the concurrent *58 running of a term of supervised release with terms of probation, parole, or with other, separate terms of supervised release. The statute instructs that concurrency is permitted not for prison sentences but only for those other types of sentences given specific mention. The next sentence in the statute does address a prison term and does allow concurrent counting, but only for prison terms less than 30 days in length. When Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference, and the one we adopt here, is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth. The 30-day exception finds no application in this case; each of respondent's sentences, to which the term of supervised release attached, exceeded that amount of time. Finally, 3583(e)(3) does not have a substantial bearing on the interpretive issue, for this directive addresses instances where conditions of supervised release have been violated, and the court orders a revocation. Our conclusion finds further support in 18 U.S. C. 3583(a), which authorizes the imposition of "a term of supervised release after imprisonment." This provision, too, is inconsistent with respondent's contention that confinement and supervised release can run at the same time. The statute's direction is clear and precise. Release takes place on the day the prisoner in fact is freed from confinement. The Court of Appeals reasoned that reduction of respondent's supervised release term was a necessary implementation of 3624(a), which provides that "[a] prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment" All concede respondent's term of imprisonment should have ended earlier than it did. It does not follow, however, that the term of supervised release commenced, as a matter of law, once he completed serving his lawful sentences. It is true the prison term and the release term are related, for the latter cannot begin until the former expires. Though interrelated, *59 the terms are not interchangeable. The Court of Appeals was mistaken in holding otherwise, and the text of 3624(e) cannot accommodate the rule the Court of Appeals derived. Supervised release has no statutory function until confinement ends. Cf. United The rule of lenity does not alter the analysis. Absent ambiguity, the rule of lenity is not applicable to guide statutory interpretation. Cf. While the text of 3624(e) resolves the case, we observe that our conclusion accords with the statute's purpose and design. The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration. See 3553(a)(2)(D); United States Sentencing Commission, Guidelines Manual 5D1.3(c), (d), (e) ; see also S. Rep. No. 98-225, p. 124 (1983) (declaring that "the primary goal [of supervised release] is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release"). Sentencing courts, in determining the conditions of a defendant's supervised release, are required to consider, among other factors, "the nature and circumstances of the offense and the history and characteristics of the defendant," "the need to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional *60 treatment." 18 U.S. C. 3553(a). In the instant case, the transition assistance ordered by the trial court required respondent, among other conditions, to avoid possessing or transporting firearms and to participate in a drug dependency treatment program. These conditions illustrate that supervised release, unlike incarceration, provides individuals with post confinement assistance. Cf. Gozlon-Peretz, The Court of Appeals erred in treating respondent's time in prison as interchangeable with his term of supervised release. There can be no doubt that equitable considerations of great weight exist when an individual is incarcerated beyond the proper expiration of his prison term. The statutory structure provides a means to address these concerns in large part. The trial court, as it sees fit, may modify an individual's conditions of supervised release. 3583(e)(2). Furthermore, the court may terminate an individual's supervised release obligations "at any time after the expiration of one year if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." 3583(e)(1). Respondent may invoke 3583(e)(2) in pursuit of relief; and, having completed one year of supervised release, he may also seek relief under 3583(e)(1). The statute, by its own necessary operation, does not reduce the length of a supervised release term by reason of excess time served in prison. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Breyer

majority

Evans v. Chavis

2006-01-10

https://www.courtlistener.com/opinion/145695/evans-v-chavis/

https://www.courtlistener.com/api/rest/v3/clusters/145695/

2005-016

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or Act) requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year. 28 U.S.C. § 2244(d)(1)(A). The Act tolls this 1-year limitations period for the "time during which a properly filed application for State post-conviction or other collateral review . . . is pending." § 2244(d)(2). The time that an application for state postconviction review is "pending" includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law. Carey v. Saffold, 536 U.S. 214 (2002). In most States a statute sets out the number of days for filing a timely notice of appeal, typically a matter of a few *192 days. See id., at 219. California, however, has a special system governing appeals when prisoners seek relief on collateral review. Under that system, the equivalent of a notice of appeal is timely if filed within a "reasonable time." In re Harris, 5 Cal. 4th 813, 828, n. 7, 855 P.2d 391, 398, n. 7 (1993); see also Saffold, supra, at 221. In this case, the Ninth Circuit found timely a California prisoner's request for appellate review made three years after the lower state court ruled against him. Chavis v. LeMarque, 382 F.3d 921 (2004). We conclude that the Circuit departed from our interpretation of the Act as applied to California's system, Carey v. Saffold, supra, and we therefore reverse its judgment. I We begin with our holding in Carey v. Saffold. In that case we addressed three questions. A We initially considered the question just mentioned: For purposes of tolling AEDPA's 1-year limitations period, is a state habeas application "pending" during the interval between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner timely files an appeal? We answered this question "yes." 536 U.S., at 219-221. If the filing of the appeal is timely, the period between the adverse lower court decision and the filing (typically just a few days) is not counted against the 1-year AEDPA time limit. B We then pointed out that in most States a prisoner who seeks review of an adverse lower court decision must file a notice of appeal in a higher court, and the timeliness of that notice of appeal is measured in terms of a determinate time period, such as 30 or 60 days. Id., at 219. As we explained, however, California has a different rule. In California, a state prisoner may seek review of an adverse lower court *193 decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a "reasonable time." Id., at 221. We asked whether this distinction made a difference for AEDPA tolling purposes. We answered that question "no." Id., at 222-223. California's system is sufficiently analogous to appellate review systems in other States to treat it similarly. See id., at 222 ("The upshot is that California's collateral review process functions very much like that of other States, but for the fact that its timeliness rule is indeterminate"). As long as the prisoner filed a petition for appellate review within a "reasonable time," he could count as "pending" (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court. Id., at 222-223. We added, "The fact that California's timeliness standard is general rather than precise may make it more difficult for federal courts to determine just when a review application (i. e., a filing in a higher court) comes too late." Id., at 223. Nonetheless, the federal courts must undertake that task. C We considered finally whether the state habeas petition at issue in the case had itself been timely filed. Saffold had filed that petition (a petition for review by the California Supreme Court) not within 30 or even 60 days after the lower court (the California Court of Appeal) had reached its adverse decision, but, rather, 4½ months later. The filing was not obviously late, however, because the delay might have been due to excusable neglect—Saffold said he had taken 4½ months because he had not received timely notice of the adverse lower court decision. Id., at 226. We sent the case back to the Ninth Circuit to decide whether the prisoner had filed his California Supreme Court petition within a "reasonable time," thus making the filing timely under California law. We also set forth several legal *194 propositions that set the boundaries within which the Ninth Circuit must answer this question. First, we pointed out that if "the California Supreme Court had clearly ruled that Saffold's 4½-month delay was `unreasonable,' that would be the end of the matter." Ibid. Second, we noted that the California Supreme Court order denying Saffold's petition had stated that the denial was "`on the merits and for lack of diligence.'" Id., at 225. But, we added, these words alone did not decide the question. Id., at 225-226. Third, we stated that the words "lack of diligence" did not prove that the California Supreme Court thought the petition was untimely. That is because those words might have referred to a totally different, earlier delay that was "irrelevant" to the timeliness of Saffold's California Supreme Court petition. Id., at 226. Fourth, we stated that the words "on the merits" did not prove that the California Supreme Court thought the petition was timely. That is because the California Supreme Court might have decided to address the merits of the petition even if the petition had been untimely. A "court," we said, "will sometimes address the merits of a claim that it believes was presented in an untimely way: for instance, where the merits present no difficult issue; where the court wants to give a reviewing court alternative grounds for decision; or where the court wishes to show a prisoner (who may not have a lawyer) that it was not merely a procedural technicality that precluded him from obtaining relief." Id., at 225-226. We ultimately concluded that the Ninth Circuit must not take "such words" (i. e., the words "on the merits") as "an absolute bellwether" on the timeliness question. Id., at 226 (emphasis added). We pointed out that the Circuit's contrary approach (i. e., an approach that presumed that an *195 order denying a petition "on the merits" meant that the petition was timely) would lead to the tolling of AEDPA's limitations period in circumstances where the law does not permit tolling. Ibid. And we gave as an example of the incorrect approach a case in which the Ninth Circuit had found timely a petition for review filed four years after the lower court reached its decision. Ibid. (citing Welch v. Newland, 267 F.3d 1013 (CA9 2001)). II We turn now to the present case. Respondent Reginald Chavis, a California state prisoner, filed a state habeas corpus petition on May 14, 1993. The trial court denied the petition. He sought review in the California Court of Appeal, which also held against him. The Court of Appeal released its decision on September 29, 1994. Chavis then waited more than three years, until November 5, 1997, before filing a petition for review in the California Supreme Court. On April 29, 1998, the California Supreme Court denied the petition in an order stating simply, "Petition for writ of habeas corpus [i. e., review in the California Supreme Court] is DENIED." App. G to Pet. for Cert. 1. Subsequently, on August 30, 2000 (after bringing a second round of state habeas petitions), Chavis filed a federal habeas petition. The State asked the federal court to dismiss the petition on the ground that it was untimely. After all, AEDPA gives prisoners only one year to file their federal petitions, and Chavis had filed his federal petition more than four years after AEDPA became effective. Still, AEDPA also provides for tolling, adding to the one year those days during which an application for state collateral review is "pending." And the federal courts consequently had to calculate how many days Chavis' state collateral review applications had been "pending" in the state courts and add those days to the 1-year limitations period. Ultimately, after the case reached the Ninth Circuit, that court concluded that the timeliness of the federal petition *196 turned upon whether the "pending" period included the 3-year period between (1) the time a lower state court, the California Court of Appeal, issued its opinion (September 29, 1994), and (2) the time Chavis sought review in a higher state court, the California Supreme Court (on November 5, 1997). The Ninth Circuit held that the state collateral review application was "pending" during this time; hence, it should add those three years to the federal 1-year limitations period, and the addition of those three years, along with various other additions, rendered the federal filing timely. The Ninth Circuit's reasoning as to why it should add the three years consists of the following: "Under our decision in Saffold, because Chavis's November 1997 habeas petition to the California Supreme Court was denied on the merits, it was pending during the interval between the Court of Appeal decision and the Supreme Court petition and he is entitled to tolling. See [Saffold v. Carey, 312 F.3d 1031, 1034-1036 (2002)]. When the California Supreme Court denies a habeas petition without comment or citation, we have long treated the denial as a decision on the merits. Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir. 1992). Therefore, the California Supreme Court's summary denial was on the merits, and the petition was not dismissed as untimely. See id.; see also Delhomme v. Ramirez, 340 F.3d 817, 819, 820 n. 2 (9th Cir. 2003) (noting that there was no indication that a state habeas petition was untimely where the California Supreme Court denied the petition without comment or citation). As a result, Chavis is entitled to tolling during [the relevant period]." 382 F.3d, at 926 (emphasis added). California sought certiorari on the ground that the Ninth Circuit's decision was inconsistent with our holding in Saffold. We granted the writ. *197 III A California argues that the Ninth Circuit's decision in this case is inconsistent with our decision in Saffold. Like California, we do not see how it is possible to reconcile the two cases. In Saffold, we held that (1) only a timely appeal tolls AEDPA's 1-year limitations period for the time between the lower court's adverse decision and the filing of a notice of appeal in the higher court; (2) in California, "unreasonable" delays are not timely; and (3) (most pertinently) a California Supreme Court order denying a petition "on the merits" does not automatically indicate that the petition was timely filed. In addition, we referred to a Ninth Circuit case holding that a 4-year delay was reasonable as an example of what the law forbids the Ninth Circuit to do. Nonetheless, the Ninth Circuit in this case said in effect that the California Supreme Court's denial of a petition "on the merits" did automatically mean that the petition was timely (and thus that a 3-year delay was reasonable). More than that, it treated an order from the California Supreme Court that was silent on the grounds for the court's decision as if it were equivalent to an order in which the words "on the merits" appeared. 382 F.3d, at 926. If the appearance of the words "on the merits" does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely. After all, the fact that the California Supreme Court did not include the words "on the merits" in its order denying Chavis relief makes it less likely, not more likely, that the California Supreme Court believed that Chavis' 3-year delay was reasonable. Thus, the Ninth Circuit's presumption ("that an order decided entirely on the merits indicates that the state court did not find the petition *198 to be untimely," post, at 205 (Stevens, J., concurring in judgment)) is not consistent with Saffold. See supra, at 194. Neither do the cases cited by the Ninth Circuit provide it with the necessary legal support. The Circuit's opinion in Saffold (written on remand from this Court) said nothing about the significance of the words "on the merits." Saffold v. Carey, 312 F.3d 1031 (2002). Hunter v. Aispuro, 982 F.2d 344 (CA9 1992), predated AEDPA, not to mention our decision in Saffold, and in any event concerned an entirely different issue of federal habeas corpus law. Delhomme v. Ramirez, 340 F.3d 817 (CA9 2003), addressed the timeliness issue in one sentence in a footnote, id., at 820, n. 2, and did not discuss at any length our opinion in Saffold, which must control the result here. In the absence of (1) clear direction or explanation from the California Supreme Court about the meaning of the term "reasonable time" in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness. That is to say, without using a merits determination as an "absolute bellwether" (as to timeliness), the federal court must decide whether the filing of the request for state-court appellate review (in state collateral review proceedings) was made within what California would consider a "reasonable time." See supra, at 193. This is what we believe we asked the Circuit to do in Saffold. This is what we believe it should have done. B The discrepancy between the Ninth Circuit's view of the matter and ours may reflect an administrative problem. The Ninth Circuit each year must hear several hundred petitions by California prisoners seeking federal habeas relief. *199 Some of these cases will involve filing delays, and some of those delays will require the federal courts to determine whether a petition for appellate review in a related state collateral proceeding was timely. Given the uncertain scope of California's "reasonable time" standard, it may not be easy for the Circuit to decide in each such case whether the prisoner's state-court review petition was timely. And it is consequently not surprising that the Circuit has tried to create rules of thumb that look to the label the California Supreme Court applied to the denial order, even where that label does not refer to timeliness. For the reasons we gave in Saffold, however, we do not believe these shortcuts remain true, either to California's timeliness rule or to Congress' intent in AEDPA to toll the 1-year limitations period only when the state collateral review proceeding is "pending." 536 U.S., at 220-221, 225-226. The California courts themselves might alleviate the problem by clarifying the scope of the words "reasonable time" in this context or by indicating, when denying a petition, whether the filing was timely. And the Ninth Circuit might seek guidance on the matter by certifying a question to the California Supreme Court in an appropriate case. Id., at 226-227. Alternatively, the California Legislature might itself decide to impose more determinate time limits, conforming California law in this respect with the law of most other States. Indeed, either state body might adopt a state-law presumption of the kind the concurrence here suggests. See post, at 209. In the absence of any such guidance, however, we see no alternative way of applying state law to a case like this one but for the Ninth Circuit simply to ask and to decide whether the state prisoner made the relevant filing within a reasonable time. In doing so, the Circuit must keep in mind that, in Saffold, we held that timely filings in California (as elsewhere) fell within the federal tolling provision on the assumption that California law in this respect did not *200 differ significantly from the laws of other States, i. e., that California's "reasonable time" standard would not lead to filing delays substantially longer than those in States with determinate timeliness rules. 536 U.S., at 222-223. California, of course, remains free to tell us if, in this respect, we were wrong. IV As we have pointed out, supra, at 195, Chavis had one year from the date AEDPA became effective (April 24, 1996) to file a federal habeas petition. Chavis did not actually file his petition in federal district court until August 30, 2000, four years and 128 days after AEDPA's effective date. Hence Chavis' federal petition was timely only if "a properly filed application for State post-conviction or other collateral review [was] pending" for at least three years and 128 days of this time. 28 U.S.C. § 2244(d)(2). Under the Ninth Circuit's reasoning Chavis' state collateral review proceedings were "pending" for three years and 130 days, which period (when added to the 1-year federal limitations period) makes the federal petition timely. As we have explained, however, we find the Ninth Circuit's reasoning in conflict with our Saffold holding. And, after examining the record, we are convinced that the law does not permit a holding that Chavis' federal habeas petition was timely. Chavis filed his state petition for habeas review in the California Supreme Court approximately three years and one month after the California Court of Appeal released its decision denying him relief. Chavis tries to explain this long delay by arguing that he could not use the prison library to work on his petition during this time either because (1) his prison job's hours coincided with those of the library, or (2) prison lockdowns confined him to his cell. And, he adds, his inability to use the library excuses the three year and one month delay—to the point where, despite the delay, he filed his petition for California Supreme Court review within a "reasonable time." *201 Chavis concedes, however, that in March 1996, App. 38, about a year and a half after the California Court of Appeal denied his habeas petition, he was given a new prison job. He nowhere denies California's assertion, id., at 68, that this new job's working hours permitted him to use the library. And he also concedes that the prison "remained relatively lockdown free" between February 1997 and August 1997, id., at 39, a 6-month period. Thus, viewing every disputed issue most favorably to Chavis, there remains a totally unexplained, hence unjustified, delay of at least six months. Six months is far longer than the "short period[s] of time," 30 to 60 days, that most States provide for filing an appeal to the state supreme court. Saffold, supra, at 219. It is far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court, see Cal. App. Ct. Rule 28(e)(1) (2004). We have found no authority suggesting, nor found any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay "reasonable." Nor do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word "pending" as interpreted in Saffold. See 536 U.S., at 222-223. Thus, since Chavis needs all but two days of the lengthy (three year and one month) delay to survive the federal 1-year habeas filing period, see 382 F.3d, at 927, he cannot succeed. The concurrence reaches the same ultimate conclusion in a different way. Unlike the Ninth Circuit, it would not count in Chavis' favor certain days during which Chavis was pursuing a second round of state collateral review efforts. See post, at 210. Because, as the Ninth Circuit pointed out, the parties did not argue this particular matter below, 382 F.3d, at 925, n. 3, we do not consider it here. For these reasons, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *202 JUSTICE STEVENS, concurring in the judgment.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or Act) requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year. (d)(1)(A). The Act tolls this 1-year limitations period for the "time during which a properly filed application for State post-conviction or other collateral review is pending." 2244(d)(2). The time that an application for state postconviction review is "pending" includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law. In most States a statute sets the number of days for filing a timely notice of appeal, typically a matter of a few *192 days. See California, however, has a special system governing appeals when prisoners seek relief on collateral review. Under that system, the equivalent of a notice of appeal is timely if filed within a "reasonable time." In re Harris, ; see also In this case, the Ninth Circuit found timely a California prisoner's request for appellate review made three years after the lower state court ruled against him. We conclude that the Circuit departed from our interpretation of the Act as applied to California's system, and we therefore reverse its judgment. I We begin with our holding in In that case we addressed three questions. A We initially considered the question just mentioned: For purposes of tolling AEDPA's 1-year limitations period, is a state habeas application "pending" during the interval between (1) the time a lower state court reaches an adverse decision, and (2) the day the prisoner timely files an appeal? We answered this question "yes." 536 U.S., -221. If the filing of the appeal is timely, the period between the adverse lower court decision and the filing (typically just a few days) is not counted against the 1-year AEDPA time limit. B We then pointed that in most States a prisoner who seeks review of an adverse lower court decision must file a notice of appeal in a higher court, and the timeliness of that notice of appeal is measured in terms of a determinate time period, such as 30 or 60 days. As we explained, however, California has a different rule. In California, a state prisoner may seek review of an adverse lower court *193 decision by filing an original petition (rather than a notice of appeal) in the higher court, and that petition is timely if filed within a "reasonable time." We asked whether this distinction made a difference for AEDPA tolling purposes. We answered that question "no." California's system is sufficiently analogous to appellate review systems in other States to treat it similarly. See As long as the prisoner filed a petition for appellate review within a "reasonable time," he could count as "pending" (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court. We added, "The fact that California's timeliness standard is general rather than precise may make it more difficult for federal courts to determine just when a review application (i. e., a filing in a higher court) comes too late." Nonetheless, the federal courts must undertake that task. C We considered finally whether the state habeas petition at issue in the case had itself been timely filed. had filed that petition (a petition for review by the California Supreme Court) not within 30 or even 60 days after the lower court (the California Court of Appeal) had reached its adverse decision, but, rather, 4½ months later. The filing was not obviously late, however, because the delay might have been due to excusable neglect— said he had taken 4½ months because he had not received timely notice of the adverse lower court decision. We sent the case back to the Ninth Circuit to decide whether the prisoner had filed his California Supreme Court petition within a "reasonable time," thus making the filing timely under California law. We also set forth several legal *194 propositions that set the boundaries within which the Ninth Circuit must answer this question. First, we pointed that if "the California Supreme Court had clearly ruled that 's 4½-month delay was `unreasonable,' that would be the end of the matter." Second, we noted that the California Supreme Court order denying 's petition had stated that the denial was "`on the merits and for lack of diligence.'" But, we added, these words alone did not decide the question. -226. Third, we stated that the words "lack of diligence" did not prove that the California Supreme Court thought the petition was untimely. That is because those words might have referred to a totally different, earlier delay that was "irrelevant" to the timeliness of 's California Supreme Court petition. Fourth, we stated that the words "on the merits" did not prove that the California Supreme Court thought the petition was timely. That is because the California Supreme Court might have decided to address the merits of the petition even if the petition had been untimely. A "court," we said, "will sometimes address the merits of a claim that it believes was presented in an untimely way: for instance, where the merits present no difficult issue; where the court wants to give a reviewing court alternative grounds for decision; or where the court wishes to show a prisoner (who may not have a lawyer) that it was not merely a procedural technicality that precluded him from obtaining relief." -226. We ultimately concluded that the Ninth Circuit must not take "such words" (i. e., the words "on the merits") as "an absolute bellwether" on the timeliness question. We pointed that the Circuit's contrary approach (i. e., an approach that presumed that an *195 order denying a petition "on the merits" meant that the petition was timely) would lead to the tolling of AEDPA's limitations period in circumstances where the law does not permit tolling. And we gave as an example of the incorrect approach a case in which the Ninth Circuit had found timely a petition for review filed four years after the lower court reached its decision. ). II We turn now to the present case. Respondent Reginald Chavis, a California state prisoner, filed a state habeas corpus petition on May 14, The trial court denied the petition. He sought review in the California Court of Appeal, which also held against him. The Court of Appeal released its decision on September 29, 1994. Chavis then waited more than three years, until November 5, 1997, before filing a petition for review in the California Supreme Court. On April 29, 1998, the California Supreme Court denied the petition in an order stating simply, "Petition for writ of habeas corpus [i. e., review in the California Supreme Court] is DENIED." App. G to Pet. for Cert. 1. Subsequently, on August 30, 2000 (after bringing a second round of state habeas petitions), Chavis filed a federal habeas petition. The State asked the federal court to dismiss the petition on the ground that it was untimely. After all, AEDPA gives prisoners only one year to file their federal petitions, and Chavis had filed his federal petition more than four years after AEDPA became effective. Still, AEDPA also provides for tolling, adding to the one year those days during which an application for state collateral review is "pending." And the federal courts consequently had to calculate how many days Chavis' state collateral review applications had been "pending" in the state courts and add those days to the 1-year limitations period. Ultimately, after the case reached the Ninth Circuit, that court concluded that the timeliness of the federal petition *196 turned upon whether the "pending" period included the 3-year period between (1) the time a lower state court, the California Court of Appeal, issued its opinion (September 29, 1994), and (2) the time Chavis sought review in a higher state court, the California Supreme Court (on November 5, 1997). The Ninth Circuit held that the state collateral review application was "pending" during this time; hence, it should add those three years to the federal 1-year limitations period, and the addition of those three years, along with various other additions, rendered the federal filing timely. The Ninth Circuit's reasoning as to why it should add the three years consists of the following: "Under our decision in because Chavis's November 1997 habeas petition to the California Supreme Court was denied on the merits, it was pending during the interval between the Court of Appeal decision and the Supreme Court petition and he is entitled to tolling. See [ v. Carey, ]. When the California Supreme Court denies a habeas petition with comment or citation, we have long treated the denial as a decision on the merits. Therefore, the California Supreme Court's summary denial was on the merits, and the petition was not dismissed as untimely. See id.; see also As a result, Chavis is entitled to tolling during [the relevant period]." California sought certiorari on the ground that the Ninth Circuit's decision was inconsistent with our holding in We granted the writ. *197 III A California argues that the Ninth Circuit's decision in this case is inconsistent with our decision in Like California, we do not see how it is possible to reconcile the two cases. In we held that (1) only a timely appeal tolls AEDPA's 1-year limitations period for the time between the lower court's adverse decision and the filing of a notice of appeal in the higher court; (2) in California, "unreasonable" delays are not timely; and (3) (most pertinently) a California Supreme Court order denying a petition "on the merits" does not automatically indicate that the petition was timely filed. In addition, we referred to a Ninth Circuit case holding that a 4-year delay was reasonable as an example of what the law forbids the Ninth Circuit to do. Nonetheless, the Ninth Circuit in this case said in effect that the California Supreme Court's denial of a petition "on the merits" did automatically mean that the petition was timely (and thus that a 3-year delay was reasonable). More than that, it treated an order from the California Supreme Court that was silent on the grounds for the court's decision as if it were equivalent to an order in which the words "on the merits" appeared. If the appearance of the words "on the merits" does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely. After all, the fact that the California Supreme Court did not include the words "on the merits" in its order denying Chavis relief makes it less likely, not more likely, that the California Supreme Court believed that Chavis' 3-year delay was reasonable. Thus, the Ninth Circuit's presumption ("that an order decided entirely on the merits indicates that the state court did not find the petition *198 to be untimely," post, at 205 (Stevens, J., concurring in judgment)) is not consistent with See Neither do the cases cited by the Ninth Circuit provide it with the necessary legal support. The Circuit's opinion in (written on remand from this Court) said nothing ab the significance of the words "on the merits." v. Carey, predated AEDPA, not to mention our decision in and in any event concerned an entirely different issue of federal habeas corpus law. addressed the timeliness issue in one sentence in a footnote, and did not discuss at any length our opinion in which must control the result here. In the absence of (1) clear direction or explanation from the California Supreme Court ab the meaning of the term "reasonable time" in the present context, or (2) clear indication that a particular request for appellate review was timely or untimely, the Circuit must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness. That is to say, with using a merits determination as an "absolute bellwether" (as to timeliness), the federal court must decide whether the filing of the request for state-court appellate review (in state collateral review proceedings) was made within what California would consider a "reasonable time." See This is what we believe we asked the Circuit to do in This is what we believe it should have done. B The discrepancy between the Ninth Circuit's view of the matter and ours may reflect an administrative problem. The Ninth Circuit each year must hear several hundred petitions by California prisoners seeking federal habeas relief. *199 Some of these cases will involve filing delays, and some of those delays will require the federal courts to determine whether a petition for appellate review in a related state collateral proceeding was timely. Given the uncertain scope of California's "reasonable time" standard, it may not be easy for the Circuit to decide in each such case whether the prisoner's state-court review petition was timely. And it is consequently not surprising that the Circuit has tried to create rules of thumb that look to the label the California Supreme Court applied to the denial order, even where that label does not refer to timeliness. For the reasons we gave in however, we do not believe these shortcuts remain true, either to California's timeliness rule or to Congress' intent in AEDPA to toll the 1-year limitations period only when the state collateral review proceeding is "pending." -221, 225-226. The California courts themselves might alleviate the problem by clarifying the scope of the words "reasonable time" in this context or by indicating, when denying a petition, whether the filing was timely. And the Ninth Circuit might seek guidance on the matter by certifying a question to the California Supreme Court in an appropriate case. -227. Alternatively, the California Legislature might itself decide to impose more determinate time limits, conforming California law in this respect with the law of most other States. Indeed, either state body might adopt a state-law presumption of the kind the concurrence here suggests. See post, at 209. In the absence of any such guidance, however, we see no alternative way of applying state law to a case like this one but for the Ninth Circuit simply to ask and to decide whether the state prisoner made the relevant filing within a reasonable time. In doing so, the Circuit must keep in mind that, in we held that timely filings in California (as elsewhere) fell within the federal tolling provision on the assumption that California law in this respect did not *200 differ significantly from the laws of other States, i. e., that California's "reasonable time" standard would not lead to filing delays substantially longer than those in States with determinate timeliness rules. 536 U.S., California, of course, remains free to tell us if, in this respect, we were wrong. IV As we have pointed Chavis had one year from the date AEDPA became effective (April 24, 1996) to file a federal habeas petition. Chavis did not actually file his petition in federal district court until August 30, 2000, four years and 128 days after AEDPA's effective date. Hence Chavis' federal petition was timely only if "a properly filed application for State post-conviction or other collateral review [was] pending" for at least three years and 128 days of this time. (d)(2). Under the Ninth Circuit's reasoning Chavis' state collateral review proceedings were "pending" for three years and 130 days, which period (when added to the 1-year federal limitations period) makes the federal petition timely. As we have explained, however, we find the Ninth Circuit's reasoning in conflict with our holding. And, after examining the record, we are convinced that the law does not permit a holding that Chavis' federal habeas petition was timely. Chavis filed his state petition for habeas review in the California Supreme Court approximately three years and one month after the California Court of Appeal released its decision denying him relief. Chavis tries to explain this long delay by arguing that he could not use the prison library to work on his petition during this time either because (1) his prison job's hours coincided with those of the library, or (2) prison lockdowns confined him to his cell. And, he adds, his inability to use the library excuses the three year and one month delay—to the point where, despite the delay, he filed his petition for California Supreme Court review within a "reasonable time." *201 Chavis concedes, however, that in March 1996, App. 38, ab a year and a half after the California Court of Appeal denied his habeas petition, he was given a new prison job. He nowhere denies California's assertion, that this new job's working hours permitted him to use the library. And he also concedes that the prison "remained relatively lockdown free" between February 1997 and August 1997, a 6-month period. Thus, viewing every disputed issue most favorably to Chavis, there remains a totally unexplained, hence unjustified, delay of at least six months. Six months is far longer than the "short period[s] of time," 30 to 60 days, that most States provide for filing an appeal to the state supreme court. It is far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court, see Cal. App. Ct. Rule 28(e)(1) We have found no authority suggesting, nor found any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay "reasonable." Nor do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word "pending" as interpreted in See 536 U.S., Thus, since Chavis needs all but two days of the lengthy (three year and one month) delay to survive the federal 1-year habeas filing period, see he cannot succeed. The concurrence reaches the same ultimate conclusion in a different way. Unlike the Ninth Circuit, it would not count in Chavis' favor certain days during which Chavis was pursuing a second round of state collateral review efforts. See post, at 210. Because, as the Ninth Circuit pointed the parties did not argue this particular matter n. 3, we do not consider it here. For these reasons, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. *202 JUSTICE STEVENS, concurring in the judgment.

Justice Stevens

concurring

Evans v. Chavis

2006-01-10

https://www.courtlistener.com/opinion/145695/evans-v-chavis/

https://www.courtlistener.com/api/rest/v3/clusters/145695/

2005-016

Today the Court holds that, in the absence of a clear statement by a California state court that a petition for habeas corpus was timely or untimely, a federal court "must itself examine the delay in each case" to determine whether the filing "was made within what California would consider a `reasonable time.'" Ante, at 198. Contrary to the Court's admonition in its next sentence, this is not what we "asked the Circuit to do in Saffold," and it is not what "it should have done." Ibid. (citing Carey v. Saffold, 536 U.S. 214 (2002)). The Ninth Circuit's decision in this case was both faithful to our decision in Saffold and consistent with our prior jurisprudence. Instead of endorsing an ad hoc approach to the interpretation of ambiguous judgments entered by California courts in the future, I believe we should direct the Ninth Circuit to apply the straightforward presumptions that I describe below. Rather than a de novo review of the record and California law, see ante, at 200-201, it is the application of these presumptions, buttressed by an independent error made by the Ninth Circuit, that convinces me that the judgment must be reversed. I As the Court has explained, both in Saffold and in its opinion today, California's postconviction procedures are unlike those employed by most other States. See 536 U.S., at 221-222; ante, at 191-193. California's time limit for the filing of a habeas corpus petition in a noncapital case is more forgiving and more flexible than that employed by most States. See Saffold, 536 U.S., at 222. Generally, such a petition "must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis of the claim." In re Harris, 5 Cal. 4th 813, 828, n. 7, 855 P.2d 391, 398, n. 7 (1993). And the State Supreme Court apparently may exercise its jurisdiction to decide the merits of a petition for habeas corpus at any time whatsoever. See *203 Cal. Const., Art. VI, § 10 (giving California Supreme Court original jurisdiction over habeas petitions); In re Clark, 5 Cal. 4th 750, 764-765, 855 P.2d 729, 738 (1993) (noting procedural rules governing habeas petitions are judicially created). It is the existence of this flexible, discretionary timeliness standard in noncapital cases[1] that gave rise to both the issue presented in Saffold and the issue the Court addresses today. In Saffold, we considered whether a habeas petition filed in the California Supreme Court 4½ months after the lower state court made its decision was "pending" (and therefore tolled the federal statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)) during that period. See 536 U.S., at 217. After concluding that a state habeas application is pending during the interval between an adverse lower court decision and the filing in the California Supreme Court, and that California's virtually unique system made no difference for purposes of tolling AEDPA's statute of limitations, we were faced with the question whether the state habeas petition in that case had been timely filed. See id., at 221, 223, 225. Rather than answering the question ourselves, we remanded the case to the Court of Appeals with instructions that it do so. Id., at 226. We also explained why the answer was not entirely clear. In its order the California Supreme Court had stated that it had denied the petition both "on the merits and for lack of diligence." Id., at 218 (internal quotation marks omitted). We pointed out that the fact that the State Supreme Court had reached the merits did not preclude the possibility that its alternative basis for decision—"lack of diligence"—expressed a conclusion that the *204 4½-month delay was unreasonable and therefore that it had considered the petition untimely as a matter of state law. On the other hand, we also recognized that "lack of diligence" might have referred to the respondent's earlier failure to file his first postconviction petition more promptly, "a matter irrelevant to the question whether his application was `pending' during the 4½-month interval." Id., at 226. Our opinion requested the Court of Appeals to resolve the ambiguity, noting that it might be "appropriate to certify a question to the California Supreme Court for the purpose of seeking clarification in this area of state law." Id., at 226-227.[2] On remand in Saffold, after reviewing three fairly contemporaneous California Supreme Court orders that involved delays of 7 months, 18 months, and 15 months without mentioning any "lack of diligence," the Court of Appeals came to the quite reasonable conclusion that the State Supreme Court's "lack of diligence" notation in the order denying Saffold's petition referred to an earlier 5-year delay that was irrelevant to the tolling issue rather than to the 4½-month delay that had preceded his most recent filing. See Saffold v. Carey, 312 F.3d 1031, 1035 (CA9 2002). It also noted "that we have not been asked to provide any bright-line rule for determining what constitutes `unreasonable' delay under California's indeterminate timeliness standard. While such a bright-line rule would certainly be welcomed, . . . such an issue is more appropriately decided by the California Supreme Court or the California State Legislature." Id., at 1036, n. 1. As both Judge O'Scannlain—who wrote for the Court of Appeals—and I understood the rule of law that animated our remand, it was predicated on the assumption that the answer to the timeliness question depended on what the California Supreme Court had actually decided rather than on any conclusion *205 that the Court of Appeals itself might reach concerning the reasonableness of the 4½-month delay under California law. See id., at 1034. That assumption, also applied by the Ninth Circuit here, was consistent with the unequivocal assertion in our opinion that if the California Supreme Court had "clearly ruled" that the 4½-month delay was unreasonable, "that would be the end of the matter," even if the court had also ruled on the merits. Saffold, 536 U.S., at 226. Similarly, there is no inconsistency between our conclusion in Saffold that the merits ruling "does not automatically indicate that the petition was timely filed," ante, at 197, and the presumption applied by the Court of Appeals in this case that an order decided entirely on the merits indicates that the state court did not find the petition to be untimely, see App. A to Pet. for Cert. 9, particularly when California allows the petitioner to advance a variety of reasons to excuse a late filing, see, e. g., In re Robbins, 18 Cal. 4th 770, 780-782, 959 P.2d 311, 318 (1998). Our rejection of the words "`on the merits'" as "an absolute bellwether" was made in a case in which the order itself indicated that the state court might have considered the petition untimely. Saffold, 536 U.S., at 226. Given that ambiguous order, Saffold did not foreclose the Court of Appeals' presumption that, by dismissing a petition solely on the merits, the state court necessarily found the filing to be timely. The Court of Appeals' opinion in this case was therefore completely consistent with both our holding and our reasoning in Saffold. II The Court of Appeals' opinion was also consistent with our prior habeas jurisprudence. While the present question requires us to apply the tolling provision of a federal statute, application of that provision ultimately rests on state-law procedural rules. See 28 U.S.C. § 2244(d)(2) (tolling federal statute while "properly filed" application for state postconviction relief is pending). To the extent that a possibly *206 decisive state-law requirement is at issue, application of AEDPA's tolling provision is analogous to the question whether denial of a state postconviction petition rested upon an adequate and independent state ground. Faced with such a question, it has been our general practice to try to determine the actual basis for the state court's decision rather than to resolve the state-law issue ourselves. The mere fact that a federal petitioner failed to abide by a state procedural rule does not prevent a federal court from resolving a federal claim unless the state court actually relied on the state procedural bar "as an independent basis for its disposition of the case." Harris v. Reed, 489 U.S. 255, 261-262 (1989) (internal quotation marks omitted). This practice is consistent with the rule of Michigan v. Long, 463 U.S. 1032, 1042 (1983), that unless it is "clear from the opinion itself" that the state court's decision rested on an adequate and independent state ground, we have appellate jurisdiction to review its resolution of a federal constitutional question. And in cases in which a state-court order is silent as to the basis for its decision, we have resorted to a presumption to reflect the role intended for such orders by the state court that issued it. See Ylst v. Nunnemaker, 501 U.S. 797, 803-804 (1991). Until today, however, we have not directed the lower federal courts to decide disputed issues of state procedural law for themselves instead of focusing on the actual basis for a state-court ruling. The Ninth Circuit's decision in this case was entirely consistent with our past practice, and I would adhere to that practice in confronting the question whether habeas petitions advancing federal claims in California courts were filed within a reasonable time as a matter of California law. Cf. Brooks v. Walls, 279 F.3d 518, 522 (CA7 2002) (Easterbrook, J.) (applying Harris and Ylst to AEDPA's "properly filed" requirement). The inquiry, then, should focus on what the state court actually decided rather *207 than what a federal court believes it could, or should, have done. III Determining what the California Supreme Court has "actually" decided is sometimes easy and sometimes difficult. Its rulings denying habeas corpus petitions generally fall into three broad categories: those expressly deciding the timeliness question, those deciding the merits without comment on timeliness, and those that do not disclose the basis for the decision.[3] To simplify the inquiry, a straightforward rule can be applied to each type of order. The easiest cases, of course, are those in which the state-court order expressly states that a petition was either untimely or timely. As we have explained, if the state court's untimeliness ruling is clear, "that would be the end of the matter," even if the court had also ruled on the merits. Saffold, 536 U.S., at 226. Conversely, an unequivocal holding that a delay was not unreasonable should be respected even if a federal judge would have decided the issue differently.[4] The decision that a petition has been untimely filed need not be explicitly stated; citation to a case in which a petition was dismissed as untimely filed certainly would suffice.[5] Cf. Brief for Petitioner 27; Robbins, 18 Cal. 4th, at 814, n. 34, 959 P.2d, at 340, n. 34 (explaining California's practice of citing certain cases for certain propositions). More difficult are those cases in which the state court rules on the merits without any comment on timeliness. *208 The Ninth Circuit deals with this situation by applying the presumption that a ruling on the merits, simpliciter, means that the state court has concluded that the petition was timely. The Court today seemingly assumes—incorrectly— that we rejected that presumption in Saffold. Even if we did so sub silentio, however, I am convinced that the Court should now endorse the Ninth Circuit's presumption because it is both eminently sensible as a matter of judicial administration and entirely sound as a matter of law. Cf. Robbins, 18 Cal. 4th, at 814, n. 34, 959 P.2d, at 340, n. 34 (explaining that when the State argues that a procedural bar applies, and the California Supreme Court's order does not cite a case imposing that bar, it means the claim is not barred on the asserted ground). The interest in the efficient processing of the dockets of overworked federal judges provides powerful support for relying on a presumption rather than engaging in de novo review of the questions whether the length of a delay was excessive, whether the petitioner's explanation for the delay would be considered acceptable by a California court, and whether a nonetheless unreasonable delay should be excused because the petition raises an unusually serious constitutional question. Cf. id., at 779-782, 959 P.2d, at 317-318. There are, of course, cases in which the Ninth Circuit's presumption may not be accurate. For example, a state court may find the deficiencies in a claim so clear that it is easier to deny it on the merits than to decide whether excuses for an apparently unreasonable delay are sufficient. But whereas California judges may continue to follow the easier route, under today's holding federal judges apparently must answer the timeliness question no matter how difficult it may be and no matter how easy it is to resolve the merits. A simple rule, applicable to all unambiguous rulings on the merits, is surely far wiser than the novel ad hoc approach that the Court appears to endorse today. *209 A general rule could also apply to the most difficult situation, which arises when the state court denies a petition with no explanation or citation whatsoever. Unlike an order that indicates that a state court has ruled on the merits, a silent order provides no evidence that the state court considered and passed upon the timeliness issue. To resolve such cases, I would adopt a presumption that, if a California court issues an unexplained order denying a petition filed after a delay of less than six months, the court considered that petition to be timely; unexplained orders following a longer delay should be presumed to be decisions on timeliness grounds. California's use of a 6-month period for determining presumptive timeliness in postconviction capital litigation—the only specific time period mentioned in California's postconviction jurisprudence—provides a principled basis for such a doublebarreled presumption. See Cal. Rules of Court Policy Statement 3, std. 1-1.1 (Deering 2005) ("A petition for a writ of habeas corpus [in a capital case] will be presumed to be filed without substantial delay if it is filed within 180 days after the final due date for the filing of appellant's reply brief on the direct appeal . . ."). Moreover, a 6-month presumption would be fully consistent with our holding in Saffold that the 4½-month delay in that case was not necessarily unreasonable.[6] IV The above standards provide me with two independently sufficient reasons for concluding that the California Supreme Court actually decided—not once, but twice—that the petitions *210 filed by respondent in that court were untimely. In one order, the State Supreme Court made its finding of untimeliness explicit; in the other, the 6-month presumption should control. First, as the Court notes ante, at 195, the California Supreme Court entered an order denying respondent habeas relief on April 29, 1998, and respondent did not file his federal petition for habeas corpus until August 30, 2000—more than a year later. The Court of Appeals found that the federal statute of limitations was tolled during this 16-month period by a second set of state habeas petitions that respondent initiated in the California trial court on January 25, 1999, and that concluded with the entry of an order by the California Supreme Court on April 28, 2000. See App. A to Pet. for Cert. 11-12. That finding was erroneous. The California Supreme Court's April 28, 2000, order, unlike its 1998 order, was not silent. Instead, the April 2000 order cited three earlier California Supreme Court cases, two of which stand for the proposition that a petition has been untimely filed. See id., at 5; Robbins, 18 Cal. 4th, at 814, n. 34, 959 P.2d, at 340, n. 34. Although the State did not argue that respondent's second habeas filing in the California Supreme Court was untimely, see App. A to Pet. for Cert. 8, n. 3, there is not even an arguable basis for disputing that the California Supreme Court found respondent's second habeas petition to have been untimely filed. Given this finding by the State Supreme Court, the Ninth Circuit clearly erred (although not for the reasons claimed by the Court). Second, respondent's November 5, 1997, state habeas petition was filed with the California Supreme Court more than three years after the California Court of Appeal denied review. Ante, at 195. The State Supreme Court denied that petition without explanation. Ibid. The presumption I described above—that an unexplained order following a delay longer than six months was based on the state court's *211 conclusion that the petition was untimely—provides me with a sufficient reason for concluding that respondent's state habeas petition was not pending during that 3-year interval. Consequently, respondent's federal habeas petition was also untimely and should have been denied. Accordingly, despite my profound disagreement with the reasoning in the Court's opinion, I concur in its judgment.

Today the Court holds that, in the absence a clear statement by a California state court that a petition for habeas corpus was timely or untimely, a federal court "must itself examine the delay in each case" to determine whether the filing "was made within what California would consider a `reasonable time.'" Ante, at 198. Contrary to the Court's admonition in its next sentence, this is not what we "asked the Circuit to do in" and it is not what "it should have done." ). The Ninth Circuit's decision in this case was both faithful to our decision in and consistent with our prior jurisprudence. Instead endorsing an ad hoc approach to the interpretation ambiguous judgments entered by California courts in the future, I believe we should direct the Ninth Circuit to apply the straightforward presumptions that I describe below. Rather than a de novo review the record and California law, see ante, at 200-201, it is the application these presumptions, buttressed by an independent error made by the Ninth Circuit, that convinces me that the judgment must be reversed. I As the Court has explained, both in and in its opinion today, California's postconviction procedures are unlike those employed by most other States. See -222; ante, at 191-193. California's time limit for the filing a habeas corpus petition in a noncapital case is more forgiving and more flexible than that employed by most States. See Generally, such a petition "must be filed within a reasonable time after the petitioner or counsel knew, or with due diligence should have known, the facts underlying the claim as well as the legal basis the claim." In re Harris, And the State Supreme Court apparently may exercise its jurisdiction to decide the merits a petition for habeas corpus at any time whatsoever. See *203 Cal. Const., Art. VI, 10 (giving California Supreme Court original jurisdiction over habeas petitions); In re Clark, It is the existence this flexible, discretionary timeliness standard in noncapital cases[1] that gave rise to both the issue presented in and the issue the Court addresses today. In we considered whether a habeas petition filed in the California Supreme Court 4½ months after the lower state court made its decision was "pending" (and therefore tolled the federal statute limitations in the Antiterrorism and Effective Death Penalty Act 1996 (AEDPA)) during that period. See After concluding that a state habeas application is pending during the interval between an adverse lower court decision and the filing in the California Supreme Court, and that California's virtually unique system made no difference for purposes tolling AEDPA's statute limitations, we were faced with the question whether the state habeas petition in that case had been timely filed. See Rather than answering the question ourselves, we remanded the case to the Court Appeals with instructions that it do so. We also explained why the answer was not entirely clear. In its order the California Supreme Court had stated that it had denied the petition both "on the merits and for lack diligence." We pointed out that the fact that the State Supreme Court had reached the merits did not preclude the possibility that its alternative basis for decision—"lack diligence"—expressed a conclusion that the *204 4½-month delay was unreasonable and therefore that it had considered the petition untimely as a matter state law. On the other hand, we also recognized that "lack diligence" might have referred to the respondent's earlier failure to file his first postconviction petition more promptly, "a matter irrelevant to the question whether his application was `pending' during the 4½-month interval." Our opinion requested the Court Appeals to resolve the ambiguity, noting that it might be "appropriate to certify a question to the California Supreme Court for the purpose seeking clarification in this area state law." -227.[2] On remand in after reviewing three fairly contemporaneous California Supreme Court orders that involved delays 7 months, 18 months, and 15 months without mentioning any "lack diligence," the Court Appeals came to the quite reasonable conclusion that the State Supreme Court's "lack diligence" notation in the order denying 's petition referred to an earlier 5-year delay that was irrelevant to the tolling issue rather than to the 4½-month delay that had preceded his most recent filing. See v. Carey, It also noted "that we have not been asked to provide any bright-line rule for determining what constitutes `unreasonable' delay under California's indeterminate timeliness standard. While such a bright-line rule would certainly be welcomed, such an issue is more appropriately decided by the California Supreme Court or the California State Legislature." As both Judge O'Scannlain—who wrote for the Court Appeals—and I understood the rule law that animated our remand, it was predicated on the assumption that the answer to the timeliness question depended on what the California Supreme Court had actually decided rather than on any conclusion *205 that the Court Appeals itself might reach concerning the reasonableness the 4½-month delay under California law. See That assumption, also applied by the Ninth Circuit here, was consistent with the unequivocal assertion in our opinion that if the California Supreme Court had "clearly ruled" that the 4½-month delay was unreasonable, "that would be the end the matter," even if the court had also ruled on the merits. 536 U.S., Similarly, there is no inconsistency between our conclusion in that the merits ruling "does not automatically indicate that the petition was timely filed," ante, at 197, and the presumption applied by the Court Appeals in this case that an order decided entirely on the merits indicates that the state court did not find the petition to be untimely, see App. A to Pet. for Cert. 9, particularly when California allows the petitioner to advance a variety reasons to excuse a late filing, see, e. g., In re Our rejection the words "`on the merits'" as "an absolute bellwether" was made in a case in which the order itself indicated that the state court might have considered the petition untimely. 536 U.S., Given that ambiguous order, did not foreclose the Court Appeals' presumption that, by dismissing a petition solely on the merits, the state court necessarily found the filing to be timely. The Court Appeals' opinion in this case was therefore completely consistent with both our holding and our reasoning in II The Court Appeals' opinion was also consistent with our prior habeas jurisprudence. While the present question requires us to apply the tolling provision a federal statute, application that provision ultimately rests on state-law procedural rules. See 28 U.S.C. 2244(d)(2) To the extent that a possibly *206 decisive state-law requirement is at issue, application AEDPA's tolling provision is analogous to the question whether denial a state postconviction petition rested upon an adequate and independent state ground. Faced with such a question, it has been our general practice to try to determine the actual basis for the state court's decision rather than to resolve the state-law issue ourselves. The mere fact that a federal petitioner failed to abide by a state procedural rule does not prevent a federal court from resolving a federal claim unless the state court actually relied on the state procedural bar "as an independent basis for its disposition the case." This practice is consistent with the rule that unless it is "clear from the opinion itself" that the state court's decision rested on an adequate and independent state ground, we have appellate jurisdiction to review its resolution a federal constitutional question. And in cases in which a state-court order is silent as to the basis for its decision, we have resorted to a presumption to reflect the role intended for such orders by the state court that issued it. See Until today, however, we have not directed the lower federal courts to decide disputed issues state procedural law for themselves instead focusing on the actual basis for a state-court ruling. The Ninth Circuit's decision in this case was entirely consistent with our past practice, and I would adhere to that practice in confronting the question whether habeas petitions advancing federal claims in California courts were filed within a reasonable time as a matter California law. Cf. (applying Harris and Ylst to AEDPA's "properly filed" requirement). The inquiry, then, should focus on what the state court actually decided rather *207 than what a federal court believes it could, or should, have done. III Determining what the California Supreme Court has "actually" decided is sometimes easy and sometimes difficult. Its rulings denying habeas corpus petitions generally fall into three broad categories: those expressly deciding the timeliness question, those deciding the merits without comment on timeliness, and those that do not disclose the basis for the decision.[3] To simplify the inquiry, a straightforward rule can be applied to each type order. The easiest cases, course, are those in which the state-court order expressly states that a petition was either untimely or timely. As we have explained, if the state court's untimeliness ruling is clear, "that would be the end the matter," even if the court had also ruled on the merits. 536 U.S., Conversely, an unequivocal holding that a delay was not unreasonable should be respected even if a federal judge would have decided the issue differently.[4] The decision that a petition has been untimely filed need not be explicitly stated; citation to a case in which a petition was dismissed as untimely filed certainly would suffice.[5] Cf. Brief for Petitioner 27; n. n. (explaining California's practice citing certain cases for certain propositions). More difficult are those cases in which the state court rules on the merits without any comment on timeliness. *208 The Ninth Circuit deals with this situation by applying the presumption that a ruling on the merits, simpliciter, means that the state court has concluded that the petition was timely. The Court today seemingly assumes—incorrectly— that we rejected that presumption in Even if we did so sub silentio, however, I am convinced that the Court should now endorse the Ninth Circuit's presumption because it is both eminently sensible as a matter judicial administration and entirely sound as a matter law. Cf. n. n. The interest in the efficient processing the dockets overworked federal judges provides powerful support for relying on a presumption rather than engaging in de novo review the questions whether the length a delay was excessive, whether the petitioner's explanation for the delay would be considered acceptable by a California court, and whether a nonetheless unreasonable delay should be excused because the petition raises an unusually serious constitutional question. Cf. -. There are, course, cases in which the Ninth Circuit's presumption may not be accurate. For example, a state court may find the deficiencies in a claim so clear that it is easier to deny it on the merits than to decide whether excuses for an apparently unreasonable delay are sufficient. But whereas California judges may continue to follow the easier route, under today's holding federal judges apparently must answer the timeliness question no matter how difficult it may be and no matter how easy it is to resolve the merits. A simple rule, applicable to all unambiguous rulings on the merits, is surely far wiser than the novel ad hoc approach that the Court appears to endorse today. *209 A general rule could also apply to the most difficult situation, which arises when the state court denies a petition with no explanation or citation whatsoever. Unlike an order that indicates that a state court has ruled on the merits, a silent order provides no evidence that the state court considered and passed upon the timeliness issue. To resolve such cases, I would adopt a presumption that, if a California court issues an unexplained order denying a petition filed after a delay less than six months, the court considered that petition to be timely; unexplained orders following a longer delay should be presumed to be decisions on timeliness grounds. California's use a 6-month period for determining presumptive timeliness in postconviction capital litigation—the only specific time period mentioned in California's postconviction jurisprudence—provides a principled basis for such a doublebarreled presumption. See Cal. Rules Court Policy Statement 3, std. 1-1.1 (Deering 2005) ("A petition for a writ habeas corpus [in a capital case] will be presumed to be filed without substantial delay if it is filed within 180 days after the final due date for the filing appellant's reply brief on the direct appeal"). Moreover, a 6-month presumption would be fully consistent with our holding in that the 4½-month delay in that case was not necessarily unreasonable.[6] IV The above standards provide me with two independently sufficient reasons for concluding that the California Supreme Court actually decided—not once, but twice—that the petitions *210 filed by respondent in that court were untimely. In one order, the State Supreme Court made its finding untimeliness explicit; in the other, the 6-month presumption should control. First, as the Court notes ante, at 195, the California Supreme Court entered an order denying respondent habeas relief on April 29, and respondent did not file his federal petition for habeas corpus until August 30, 2000—more than a year later. The Court Appeals found that the federal statute limitations was tolled during this 16-month period by a second set state habeas petitions that respondent initiated in the California trial court on January 25, 1999, and that concluded with the entry an order by the California Supreme Court on April 28, 2000. See App. A to Pet. for Cert. 11-12. That finding was erroneous. The California Supreme Court's April 28, 2000, order, unlike its order, was not silent. Instead, the April 2000 order cited three earlier California Supreme Court cases, two which stand for the proposition that a petition has been untimely filed. See ; n. n. Although the State did not argue that respondent's second habeas filing in the California Supreme Court was untimely, see App. A to Pet. for Cert. 8, n. 3, there is not even an arguable basis for disputing that the California Supreme Court found respondent's second habeas petition to have been untimely filed. Given this finding by the State Supreme Court, the Ninth Circuit clearly erred (although not for the reasons claimed by the Court). Second, respondent's November 5, 1997, state habeas petition was filed with the California Supreme Court more than three years after the California Court Appeal denied review. Ante, at 195. The State Supreme Court denied that petition without explanation. The presumption I described above—that an unexplained order following a delay longer than six months was based on the state court's *211 conclusion that the petition was untimely—provides me with a sufficient reason for concluding that respondent's state habeas petition was not pending during that 3-year interval. Consequently, respondent's federal habeas petition was also untimely and should have been denied. Accordingly, despite my pround disagreement with the reasoning in the Court's opinion, I concur in its judgment.

Justice Breyer

majority

Harris v. Arizona Independent Redistricting Comm'n

2016-04-20

https://www.courtlistener.com/opinion/3195997/harris-v-arizona-independent-redistricting-commn/

https://www.courtlistener.com/api/rest/v3/clusters/3195997/

2015-027

Appellants, a group of Arizona voters, challenge a re- districting plan for the State’s legislature on the ground that the plan’s districts are insufficiently equal in popula- tion. See Reynolds v. Sims, 377 U.S. 533, 577 (1964). Because the maximum population deviation between the largest and the smallest district is less than 10%, the appellants cannot simply rely upon the numbers to show that the plan violates the Constitution. See Brown v. Thomson, 462 U.S. 835, 842 (1983). Nor have appellants adequately supported their contentions with other evi- dence. We consequently affirm a 3-judge Federal District Court decision upholding the plan. I In 2000, Arizona voters, using the initiative process, amended the Arizona Constitution to provide for an inde- pendent redistricting commission. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. ___, ___ (2015) (slip op., at 35) (upholding the amendment as consistent with federal constitutional and 2 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court statutory law). Each decade, the Arizona Commission on Appellate Court Appointments creates three slates of individuals: one slate of 10 Republicans, one slate of 10 Democrats, and one slate of 5 individuals not affiliated with any political party. The majority and minority leader of the Arizona Legislature each select one Redistricting Commission member from the first two lists. These four selected individuals in turn choose one member from the third, nonpartisan list. See Ariz. Const., Art. IV, pt. 2, §§1(5)–(8). Thus, the membership of the Commission consists of two Republicans, two Democrats, and one independent. After each decennial census, the Commission redraws Arizona’s 30 legislative districts. The first step in the process is to create “districts of equal population in a grid- like pattern across the state.” §1(14). It then adjusts the grid to “the extent practicable” in order to take into ac- count the need for population equality; to maintain geo- graphic compactness and continuity; to show respect for “communities of interest”; to follow locality boundaries; and to use “visible geographic features” and “undivided . . . tracts.” §§1(14)(B)–(E). The Commission will “favo[r]” political “competitive[ness]” as long as its efforts to do so “create no significant detriment to the other goals.” Id., §1(14)(F). Finally, it must adjust boundaries “as neces- sary” to comply with the Federal Constitution and with the federal Voting Rights Act. §1(14)(A). After the 2010 census, the legislative leadership selected the Commission’s two Republican and two Democratic members, who in turn selected an independent member, Colleen Mathis. Mathis was then elected chairwoman. The Commission hired two counsel, one of whom they thought of as leaning Democrat and one as leaning Repub- lican. It also hired consultants, including mapping spe- cialists, a statistician, and a Voting Rights Act specialist. With the help of its staff, it drew an initial plan, based Cite as: 578 U. S. ____ (2016) 3 Opinion of the Court upon the gridlike map, with district boundaries that pro- duced a maximum population deviation (calculated as the difference between the most populated and least populated district) of 4.07%. After changing several boundaries, including those of Districts 8, 24, and 26, the Commission adopted a revised plan by a vote of 3 to 2, with the two Republican members voting against it. In late April 2012, the Department of Justice approved the plan as consistent with the Voting Rights Act. The next day, appellants filed this lawsuit, primarily claiming that the plan’s population variations were incon- sistent with the Fourteenth Amendment. A 3-judge Fed- eral District Court heard the case. See 28 U.S. C. §2284(a) (providing for the convention of such a court whenever an action is filed challenging the constitutional- ity of apportionment of legislative districts). After a 5-day bench trial, the court, by a vote of 2 to 1, entered judgment for the Commission. The majority found that “the popula- tion deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d 1042, 1046 (Ariz. 2014). Appellants sought direct review in this Court. See 28 U.S. C. §1253. We noted probable jurisdic- tion on June 30, 2015, and we now affirm. II A The Fourteenth Amendment’s Equal Protection Clause requires States to “make an honest and good faith effort to construct [legislative] districts . . . as nearly of equal popu- lation as is practicable.” Reynolds, 377 U.S., at 577. The Constitution, however, does not demand mathematical perfection. In determining what is “practicable,” we have recognized that the Constitution permits deviation when it is justified by “legitimate considerations incident to the effectuation of a rational state policy.” Id., at 579. In 4 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court related contexts, we have made clear that in addition to the “traditional districting principles such as compactness [and] contiguity,” Shaw v. Reno, 509 U.S. 630, 647 (1993), those legitimate considerations can include a state inter- est in maintaining the integrity of political subdivisions, Mahan v. Howell, 410 U.S. 315, 328 (1973), or the compet- itive balance among political parties, Gaffney v. Cum- mings, 412 U.S. 735, 752 (1973). In cases decided before Shelby County v. Holder, 570 U. S. ___ (2013), Members of the Court expressed the view that compliance with §5 of the Voting Rights Act is also a legitimate state considera- tion that can justify some deviation from perfect equality of population. See League of United Latin American Citi- zens v. Perry, 548 U.S. 399, 518 (2006) (SCALIA, J., con- curring in judgment in part and dissenting in part, joined in relevant part by ROBERTS, C. J., THOMAS & ALITO, JJ.); id., at 475, n. 12 (Stevens, J., concurring in part and dis- senting in part, joined in relevant part by BREYER, J.); id., at 485 n. 2 (Souter, J., concurring in part and dissenting in part, joined by GINSBURG, J.); see also Vieth v. Jubelirer, 541 U.S. 267, 284 (2004) (plurality opinion) (listing exam- ples of traditional redistricting criteria, including “compli- ance with requirements of the [Voting Rights Act]”). It was proper for the Commission to proceed on that basis here. We have further made clear that “minor deviations from mathematical equality” do not, by themselves, “make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Gaffney, supra, at 745. We have defined as “minor deviations” those in “an apportionment plan with a maximum population deviation under 10%.” Brown, 462 U.S., at 842. And we have refused to require States to justify deviations of 9.9%, White v. Regester, 412 U.S. 755, 764 (1973), and 8%, Gaffney, 412 U.S., at 751. See also Fund for Accurate and Informed Representation, Inc. v. Weprin, 506 U.S. 1017 (1992) (summarily affirming a Cite as: 578 U. S. ____ (2016) 5 Opinion of the Court District Court’s finding that there was no prima facie case where the maximum population deviation was 9.43%). In sum, in a case like this one, those attacking a state- approved plan must show that it is more probable than not that a deviation of less than 10% reflects the predomi- nance of illegitimate reapportionment factors rather than the “legitimate considerations” to which we have referred in Reynolds and later cases. Given the inherent difficulty of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality, we believe that attacks on deviations under 10% will succeed only rarely, in unusual cases. And we are not surprised that the appellants have failed to meet their burden here. B Appellants’ basic claim is that deviations in their appor- tionment plan from absolute equality of population reflect the Commission’s political efforts to help the Democratic Party. We believe that appellants failed to prove this claim because, as the district court concluded, the devia- tions predominantly reflected Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party. Appellants failed to show to the contrary. And the record bears out this conclusion. Cf. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (explaining that a district court’s factual finding as to whether discrimination occurred will not be set aside by an appellate court unless clearly erroneous). The Voting Rights Act, among other things, forbids the use of new reapportionment plans that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral fran- chise.” Reno v. Bossier Parish School Bd., 520. U. S. 471, 478 (1997). A plan leads to impermissible retrogression when, compared to the plan currently in effect (typically 6 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court called a “benchmark plan”), the new plan diminishes the number of districts in which minority groups can “elect their preferred candidates of choice” (often called “ability- to-elect” districts). See 52 U.S. C. §10304(b). A State can obtain legal assurance that it has satisfied the non- retrogression requirement if it submits its proposed plan to the Federal Department of Justice, and the Department does not object to the plan within 60 days. See 28 C. F. R. §§51.9, 51.52(b) (2015). While Shelby County struck down the §4(b) coverage formula, that decision came after the maps in this case were drawn. The record in this case shows that the gridlike map that emerged after the first step of the redistricting process had a maximum population deviation from absolute equal- ity of districts of 4.07%. After consulting with their Voting Rights Act expert, their mapping consultant, and their statisticians, all five Commissioners agreed that they must try to obtain Justice Department Voting Rights Act “preclearance” and that the former benchmark plan con- tained 10 ability-to-elect districts. They consequently set a goal of 10 such districts for the new plan. They then went through an iterative process, involving further con- sultation, to adjust the plan’s initial boundaries in order to enhance minority voting strength. In October 2011 (by a vote of 4 to 1), they tentatively approved a draft plan with adjusted boundaries. They believed it met their goal of 10 ability-to-elect districts. And they published the plan for public comment. In the meantime, however, the Commission received a report from one of its statisticians suggesting that the Department of Justice might not agree that the new pro- posed plan contained 10 ability-to-elect districts. It was difficult to know for certain because the Justice Depart- ment did not tell States how many ability-to-elect districts it believed were present in a benchmark plan, and neither did it typically explain precisely and specifically how it Cite as: 578 U. S. ____ (2016) 7 Opinion of the Court would calculate the number that exist in a newly submit- ted plan. See 76 Fed. Reg. 7470–7471 (2011). At the same time, the ability-to-elect analysis was complex, involving more than simply adding up census figures. The Depart- ment of Justice instead conducted a “functional analysis of the electoral behavior within the particular . . . election district,” id., at 7471, and so might, for example, count as ability-to-elect districts “crossover” districts in which white voters combine their votes with minorities, see Bartlett v. Strickland, 556 U.S. 1, 13–14 (2009). Its calcu- lations might take into account group voting patterns, electoral participation, election history, and voter turnout. See 76 Fed. Reg., 7471. The upshot was not random decision-making but the process did create an inevitable degree of uncertainty. And that uncertainty could lead a redistricting commission, as it led Arizona’s, to make serious efforts to make certain that the districts it believed were ability-to-elect districts did in fact meet the criteria that the Department might reasonably apply. Cf. Ala- bama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 22) (“The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands [because] the standards of §5 are complex . . . . [To do so would] lay a trap for an unwary legislature, condemning its redis- tricting plan as either . . . unconstitutional racial gerry- mandering [or] . . . retrogressive under §5”). As a result of the statistician’s report, the Commission became concerned about certain of its proposed bounda- ries. One of the Commission’s counsel advised that it would be “prudent to stay the course in terms of the ten districts that are in the draft map and look to . . . strengthen them if there is a way to strengthen them.” 993 F. Supp. 2d, at 1058 (internal quotation marks omitted). Subsequently, the Commission adopted several changes to the boundaries of Districts 24 and 26. It reduced the 8 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court populations of those districts, thereby increasing the percentage of Hispanic voters in each. The Commission approved these changes unanimously. Changes in the boundaries of District 8, however, proved more controversial. District 8 leaned Republican. A Democrat-appointed Commissioner asked the mapping specialist to look into modifications that might make District 8 politically more competitive. The specialist returned with a draft that shifted the boundary line be- tween District 8 and District 11 so as to keep several communities with high minority populations together in District 8. The two Republican-appointed Commissioners objected that doing so would favor Democrats by “hy- perpacking” Republicans into other districts; they added that the Commission should either favor political competi- tiveness throughout the State or not at all. Id., at 1059 (internal quotation marks omitted). The Democrat-appointed proponent of the change re- plied that District 8 had historically provided minority groups a good opportunity to elect their candidate of choice—an opportunity that the changes would preserve. The Voting Rights Act specialist then said that by slightly increasing District 8’s minority population, the Commis- sion might be able to claim an 11th ability-to-elect district; and that fact would “unquestionably enhance the submis- sion and enhance chances for preclearance.” Ibid. (inter- nal quotation marks omitted). The Commission’s counsel then added that having another possible ability-to-elect district could be helpful because District 26 was not as strong an ability-to-elect district as the others. See ibid. Only then, after the counsel and consultants argued for District 8 changes for the sake of Voting Rights Act pre- clearance, did Chairwoman Mathis support those changes. On that basis, the Commission ultimately approved the changes to District 8 by a vote of 3 to 2 (with the two Republican-appointed commissioners dissenting). The Cite as: 578 U. S. ____ (2016) 9 Opinion of the Court total population deviation among districts in this final map was 8.8%. While the Commission ultimately con- cluded that District 8 was not a true ability-to-elect dis- trict, the State’s submission to the Department of Justice cited the changes to District 8 in support of the argument for preclearance. On April 26, 2012, the Department of Justice precleared the submitted plan. On the basis of the facts that we have summarized, the District Court majority found that “the population devia- tions were primarily a result of good-faith efforts to com- ply with the Voting Rights Act . . . even though partisan- ship played some role.” 993 F. Supp. 2d, at 1046. This conclusion was well supported in the record. And as a result, appellants have not shown that it is more probable than not that illegitimate considerations were the predom- inant motivation behind the plan’s deviations from math- ematically equal district populations—deviations that were under 10%. Consequently, they have failed to show that the Commission’s plan violates the Equal Protection Clause as interpreted in Reynolds and subsequent cases. C The appellants make three additional arguments. First, they support their claim that the plan reflects unreason- able use of partisan considerations by pointing to the fact that almost all the Democratic-leaning districts are some- what underpopulated and almost all the Republican- leaning districts are somewhat overpopulated. That is likely true. See 993 F. Supp. 2d, at 1049 (providing a chart with percentage deviation figures by district). But that fact may well reflect the tendency of minority popula- tions in Arizona in 2010 to vote disproportionately for Democrats. If so, the variations are explained by the Commission’s efforts to maintain at least 10 ability-to- elect districts. The Commission may have relied on data from its statisticians and Voting Rights Act expert to 10 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court create districts tailored to achieve preclearance in which minority voters were a larger percentage of the district population. That might have necessitated moving other voters out of those districts, thereby leaving them slightly underpopulated. The appellants point to nothing in the record to suggest the contrary. Second, the appellants point to Cox v. Larios, 542 U.S. 947 (2004), in which we summarily affirmed a district court’s judgment that Georgia’s reapportionment of repre- sentatives to state legislative districts violated the Equal Protection Clause, even though the total population devia- tion was less than 10%. In Cox, however, unlike the pre- sent case, the district court found that those attacking the plan had shown that it was more probable than not that the use of illegitimate factors significantly explained deviations from numerical equality among districts. The district court produced many examples showing that population deviation as well as the shape of many districts “did not result from any attempt to create districts that were compact or contiguous, or to keep counties whole, or to preserve the cores of prior districts.” Id., at 949. No legitimate purposes could explain them. It is appellants’ inability to show that the present plan’s deviations and boundary shapes result from the predominance of simi- larly illegitimate factors that makes Cox inapposite here. Even assuming, without deciding, that partisanship is an illegitimate redistricting factor, appellants have not car- ried their burden. Third, appellants point to Shelby County v. Holder, 570 U. S. ___ (2013), in which this Court held unconstitutional sections of the Voting Rights Act that are relevant to this case. Appellants contend that, as a result of that holding, Arizona’s attempt to comply with the Act could not have been a legitimate state interest. The Court decided Shelby County, however, in 2013. Arizona created the plan at issue here in 2010. At the time, Arizona was subject to Cite as: 578 U. S. ____ (2016) 11 Opinion of the Court the Voting Rights Act, and we have never suggested the contrary. * * * For these reasons the judgment of the District Court is affirmed. It is so ordered

Appellants, a group of Arizona voters, challenge a re- districting plan for the State’s legislature on the ground that the plan’s districts are insufficiently equal in popula- tion. See Because the maximum population deviation between the largest and the smallest district is less than 10%, the appellants cannot simply rely upon the numbers to show that the plan violates the Constitution. See Brown v. Thomson, Nor have appellants adequately supported their contentions with other evi- dence. We consequently affirm a 3-judge Federal District Court decision upholding the plan. I In 2000, Arizona voters, using the initiative process, amended the Arizona Constitution to provide for an inde- pendent redistricting commission. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. (2015) (slip op., at 35) (upholding the amendment as consistent with federal constitutional and 2 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court statutory law). Each decade, the Arizona Commission on Appellate Court Appointments creates three slates of individuals: one slate of 10 Republicans, one slate of 10 Democrats, and one slate of 5 individuals not affiliated with any political party. The majority and minority leader of the Arizona Legislature each select one Redistricting Commission member from the first two lists. These four selected individuals in turn choose one member from the third, nonpartisan list. See Ariz. Const., Art. IV, pt. 2, Thus, the membership of the Commission consists of two Republicans, two Democrats, and one independent. After each decennial census, the Commission redraws Arizona’s 30 legislative districts. The first step in the process is to create “districts of equal population in a grid- like pattern across the state.” It then adjusts the grid to “the extent practicable” in order to take into ac- count the need for population equality; to maintain geo- graphic compactness and continuity; to show respect for “communities of interest”; to follow locality boundaries; and to use “visible geographic features” and “undivided tracts.” The Commission will “favo[r]” political “competitive[ness]” as long as its efforts to do so “create no significant detriment to the other goals.” Finally, it must adjust boundaries “as neces- sary” to comply with the Federal Constitution and with the federal Voting Rights Act. After the 2010 census, the legislative leadership selected the Commission’s two Republican and two Democratic members, who in turn selected an independent member, Colleen Mathis. Mathis was then elected chairwoman. The Commission hired two counsel, one of whom they thought of as leaning Democrat and one as leaning Repub- lican. It also hired consultants, including mapping spe- cialists, a statistician, and a Voting Rights Act specialist. With the help of its staff, it drew an initial plan, based Cite as: 578 U. S. (2016) 3 Opinion of the Court upon the gridlike map, with district boundaries that pro- duced a maximum population deviation (calculated as the difference between the most populated and least populated district) of 4.07%. After changing several boundaries, including those of Districts 8, 24, and 26, the Commission adopted a revised plan by a vote of 3 to 2, with the two Republican members voting against it. In late April 2012, the Department of Justice approved the plan as consistent with the Voting Rights Act. The next day, appellants filed this lawsuit, primarily claiming that the plan’s population variations were incon- sistent with the Fourteenth Amendment. A 3-judge Fed- eral District Court heard the case. See 28 U.S. C. (providing for the convention of such a court whenever an action is filed challenging the constitutional- ity of apportionment of legislative districts). After a 5-day bench trial, the court, by a vote of 2 to 1, entered judgment for the Commission. The majority found that “the popula- tion deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act even though partisanship played some role.” 1046 (Ariz. 2014). Appellants sought direct review in this Court. See 28 U.S. C. We noted probable jurisdic- tion on June 30, 2015, and we now affirm. II A The Fourteenth Amendment’s Equal Protection Clause requires States to “make an honest and good faith effort to construct [legislative] districts as nearly of equal popu- lation as is practicable.” 377 U.S., at The Constitution, however, does not demand mathematical perfection. In determining what is “practicable,” we have recognized that the Constitution permits deviation when it is justified by “legitimate considerations incident to the effectuation of a rational state policy.” In 4 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court related contexts, we have made clear that in addition to the “traditional districting principles such as compactness [and] contiguity,” those legitimate considerations can include a state inter- est in maintaining the integrity of political subdivisions, or the compet- itive balance among political parties, In cases decided before Shelby County v. Holder, 570 U. S. (2013), Members of the Court expressed the view that compliance with of the Voting Rights Act is also a legitimate state considera- tion that can justify some deviation from perfect equality of population. See League of United Latin American Citi- (SCALIA, J., con- curring in judgment in part and dissenting in part, joined in relevant part by ROBERTS, C. J., THOMAS & ALITO, JJ.); (Stevens, J., concurring in part and dis- senting in part, joined in relevant part by BREYER, J.); at 485 n. 2 (Souter, J., concurring in part and dissenting in part, joined by GINSBURG, J.); see also (listing exam- ples of traditional redistricting criteria, including “compli- ance with requirements of the [Voting Rights Act]”). It was proper for the Commission to proceed on that basis here. We have further made clear that “minor deviations from mathematical equality” do not, by themselves, “make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” We have defined as “minor deviations” those in “an apportionment plan with a maximum population deviation under 10%.” Brown, 462 U.S., at And we have refused to require States to justify deviations of 9.9%, 764 and 8%, See also Fund for Accurate and Informed Representation, Inc. v. Weprin, (summarily affirming a Cite as: 578 U. S. (2016) 5 Opinion of the Court District Court’s finding that there was no prima facie case where the maximum population deviation was 9.43%). In sum, in a case like this one, those attacking a state- approved plan must show that it is more probable than not that a deviation of less than 10% reflects the predomi- nance of illegitimate reapportionment factors rather than the “legitimate considerations” to which we have referred in and later cases. Given the inherent difficulty of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality, we believe that attacks on deviations under 10% will succeed only rarely, in unusual cases. And we are not surprised that the appellants have failed to meet their burden here. B Appellants’ basic claim is that deviations in their appor- tionment plan from absolute equality of population reflect the Commission’s political efforts to help the Democratic Party. We believe that appellants failed to prove this claim because, as the district court concluded, the devia- tions predominantly reflected Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party. Appellants failed to show to the contrary. And the record bears out this conclusion. Cf. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (explaining that a district court’s factual finding as to whether discrimination occurred will not be set aside by an appellate court unless clearly erroneous). The Voting Rights Act, among other things, forbids the use of new reapportionment plans that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral fran- chise.” Reno v. Bossier Parish School Bd., 520. U. S. 471, 478 (1997). A plan leads to impermissible retrogression when, compared to the plan currently in effect (typically 6 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court called a “benchmark plan”), the new plan diminishes the number of districts in which minority groups can “elect their preferred candidates of choice” (often called “ability- to-elect” districts). See 52 U.S. C. A State can obtain legal assurance that it has satisfied the non- retrogression requirement if it submits its proposed plan to the Federal Department of Justice, and the Department does not object to the plan within 60 days. See 28 C. F. R. §1.9, 51.52(b) (2015). While Shelby County struck down the coverage formula, that decision came after the maps in this case were drawn. The record in this case shows that the gridlike map that emerged after the first step of the redistricting process had a maximum population deviation from absolute equal- ity of districts of 4.07%. After consulting with their Voting Rights Act expert, their mapping consultant, and their statisticians, all five Commissioners agreed that they must try to obtain Justice Department Voting Rights Act “preclearance” and that the former benchmark plan con- tained 10 ability-to-elect districts. They consequently set a goal of 10 such districts for the new plan. They then went through an iterative process, involving further con- sultation, to adjust the plan’s initial boundaries in order to enhance minority voting strength. In October 2011 (by a vote of 4 to 1), they tentatively approved a draft plan with adjusted boundaries. They believed it met their goal of 10 ability-to-elect districts. And they published the plan for public comment. In the meantime, however, the Commission received a report from one of its statisticians suggesting that the Department of Justice might not agree that the new pro- posed plan contained 10 ability-to-elect districts. It was difficult to know for certain because the Justice Depart- ment did not tell States how many ability-to-elect districts it believed were present in a benchmark plan, and neither did it typically explain precisely and specifically how it Cite as: 578 U. S. (2016) 7 Opinion of the Court would calculate the number that exist in a newly submit- ted plan. See –7471 (2011). At the same time, the ability-to-elect analysis was complex, involving more than simply adding up census figures. The Depart- ment of Justice instead conducted a “functional analysis of the electoral behavior within the particular election district,” and so might, for example, count as ability-to-elect districts “crossover” districts in which white voters combine their votes with minorities, see Its calcu- lations might take into account group voting patterns, electoral participation, election history, and voter turnout. See 76 Fed. Reg., 7471. The upshot was not random decision-making but the process did create an inevitable degree of uncertainty. And that uncertainty could lead a redistricting commission, as it led Arizona’s, to make serious efforts to make certain that the districts it believed were ability-to-elect districts did in fact meet the criteria that the Department might reasonably apply. Cf. Ala- bama Legislative Black Caucus v. Alabama, 575 U. S. (2015) (slip op., at 22) (“The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population demands [because] the standards of are complex [To do so would] lay a trap for an unwary legislature, condemning its redis- tricting plan as either unconstitutional racial gerry- mandering [or] retrogressive under ”). As a result of the statistician’s report, the Commission became concerned about certain of its proposed bounda- ries. One of the Commission’s counsel advised that it would be “prudent to stay the course in terms of the ten districts that are in the draft map and look to strengthen them if there is a way to strengthen them.” 993 F. Supp. 2d, at 1058 (internal quotation marks omitted). Subsequently, the Commission adopted several changes to the boundaries of Districts 24 and 26. It reduced the 8 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court populations of those districts, thereby increasing the percentage of Hispanic voters in each. The Commission approved these changes unanimously. Changes in the boundaries of District 8, however, proved more controversial. District 8 leaned Republican. A Democrat-appointed Commissioner asked the mapping specialist to look into modifications that might make District 8 politically more competitive. The specialist returned with a draft that shifted the boundary line be- tween District 8 and District 11 so as to keep several communities with high minority populations together in District 8. The two Republican-appointed Commissioners objected that doing so would favor Democrats by “hy- perpacking” Republicans into other districts; they added that the Commission should either favor political competi- tiveness throughout the State or not at all. (internal quotation marks omitted). The Democrat-appointed proponent of the change re- plied that District 8 had historically provided minority groups a good opportunity to elect their candidate of choice—an opportunity that the changes would preserve. The Voting Rights Act specialist then said that by slightly increasing District 8’s minority population, the Commis- sion might be able to claim an 11th ability-to-elect district; and that fact would “unquestionably enhance the submis- sion and enhance chances for preclearance.” (inter- nal quotation marks omitted). The Commission’s counsel then added that having another possible ability-to-elect district could be helpful because District 26 was not as strong an ability-to-elect district as the others. See Only then, after the counsel and consultants argued for District 8 changes for the sake of Voting Rights Act pre- clearance, did Chairwoman Mathis support those changes. On that basis, the Commission ultimately approved the changes to District 8 by a vote of 3 to 2 (with the two Republican-appointed commissioners dissenting). The Cite as: 578 U. S. (2016) 9 Opinion of the Court total population deviation among districts in this final map was 8.8%. While the Commission ultimately con- cluded that District 8 was not a true ability-to-elect dis- trict, the State’s submission to the Department of Justice cited the changes to District 8 in support of the argument for preclearance. On April 26, 2012, the Department of Justice precleared the submitted plan. On the basis of the facts that we have summarized, the District Court majority found that “the population devia- tions were primarily a result of good-faith efforts to com- ply with the Voting Rights Act even though partisan- ship played some role.” This conclusion was well supported in the record. And as a result, appellants have not shown that it is more probable than not that illegitimate considerations were the predom- inant motivation behind the plan’s deviations from math- ematically equal district populations—deviations that were under 10%. Consequently, they have failed to show that the Commission’s plan violates the Equal Protection Clause as interpreted in and subsequent cases. C The appellants make three additional arguments. First, they support their claim that the plan reflects unreason- able use of partisan considerations by pointing to the fact that almost all the Democratic-leaning districts are some- what underpopulated and almost all the Republican- leaning districts are somewhat overpopulated. That is likely true. See (providing a chart with percentage deviation figures by district). But that fact may well reflect the tendency of minority popula- tions in Arizona in 2010 to vote disproportionately for Democrats. If so, the variations are explained by the Commission’s efforts to maintain at least 10 ability-to- elect districts. The Commission may have relied on data from its statisticians and Voting Rights Act expert to 10 HARRIS v. ARIZONA INDEPENDENT REDISTRICTING COMM’N Opinion of the Court create districts tailored to achieve preclearance in which minority voters were a larger percentage of the district population. That might have necessitated moving other voters out of those districts, thereby leaving them slightly underpopulated. The appellants point to nothing in the record to suggest the contrary. Second, the appellants point to Cox v. Larios, 542 U.S. 947 in which we summarily affirmed a district court’s judgment that Georgia’s reapportionment of repre- sentatives to state legislative districts violated the Equal Protection Clause, even though the total population devia- tion was less than 10%. In Cox, however, unlike the pre- sent case, the district court found that those attacking the plan had shown that it was more probable than not that the use of illegitimate factors significantly explained deviations from numerical equality among districts. The district court produced many examples showing that population deviation as well as the shape of many districts “did not result from any attempt to create districts that were compact or contiguous, or to keep counties whole, or to preserve the cores of prior districts.” No legitimate purposes could explain them. It is appellants’ inability to show that the present plan’s deviations and boundary shapes result from the predominance of simi- larly illegitimate factors that makes Cox inapposite here. Even assuming, without deciding, that partisanship is an illegitimate redistricting factor, appellants have not car- ried their burden. Third, appellants point to Shelby County v. Holder, 570 U. S. (2013), in which this Court held unconstitutional sections of the Voting Rights Act that are relevant to this case. Appellants contend that, as a result of that holding, Arizona’s attempt to comply with the Act could not have been a legitimate state interest. The Court decided Shelby County, however, in 2013. Arizona created the plan at issue here in 2010. At the time, Arizona was subject to Cite as: 578 U. S. (2016) 11 Opinion of the Court the Voting Rights Act, and we have never suggested the contrary. * * * For these reasons the judgment of the District Court is affirmed. It is so ordered

Justice Stevens

majority

Cook v. Gralike

2001-02-28

https://www.courtlistener.com/opinion/2621075/cook-v-gralike/

https://www.courtlistener.com/api/rest/v3/clusters/2621075/

2000-027

In U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), we reviewed a challenge to an Arkansas law that prohibited the name of an otherwise eligible candidate for the United States Congress from appearing on the general election ballot if he or she had already served three terms in the House of Representatives or two terms in the Senate. We held that the ballot restriction was an indirect attempt to impose term limits on congressional incumbents that violated the Qualifications Clauses in Article I of the Constitution rather than a permissible exercise of the State's power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives" within the meaning of Article I, § 4, cl. 1. In response to that decision, the voters of Missouri adopted in 1996 an amendment to Article VIII[1] of their State Constitution designed to lead to the adoption of a specified "Congressional Term Limits Amendment" to the Federal Constitution. At issue in this case is the constitutionality of Article VIII. *514 I Article VIII "instruct[s]" each Member of Missouri's congressional delegation "to use all of his or her delegated powers to pass the Congressional Term Limits Amendment" set forth in § 16 of the Article. Mo. Const., Art. VIII, § 17(1). That proposed amendment would limit service in the United States Congress to three terms in the House of Representatives and two terms in the Senate.[2] Three provisions in Article VIII combine to advance its purpose. Section 17 prescribes that the statement "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" be printed on all primary and general ballots adjacent to the name of a Senator or Representative who fails to take any one of eight legislative acts in support of the proposed amendment.[3] Section 18 provides that the statement "DE- *515 CLINED TO PLEDGE TO SUPPORT TERM LIMITS" be printed on all primary and general election ballots next to the name of every nonincumbent congressional candidate who refuses to take a "Term Limit" pledge that commits the candidate, if elected, to performing the legislative acts enumerated in § 17.[4] And § 19 directs the Missouri Secretary of State to determine and declare, pursuant to §§ 17 and 18, whether either statement should be printed alongside the name of each candidate for Congress.[5] *516 Respondent Don Gralike was a nonincumbent candidate for election in 1998 to the United States House of Representatives from Missouri's Third Congressional District. A month after Article VIII was amended, Gralike brought suit[6] in the United States District Court for the Western District of Missouri to enjoin petitioner, the Secretary of State of Missouri, from implementing the Article, which the complaint alleges violates several provisions of the Federal Constitution. The District Court decided the case on the pleadings, granting Gralike's motion for summary judgment. The court first held that Article VIII contravened the Qualifications Clauses of Article I of the Federal Constitution because it "has the sole purpose of creating additional qualifications for Congress indirectly and has the likely effect of handicapping a class of candidates for Congress." 996 F. Supp. 917, 920 (1998); see 996 F. Supp. 901, 905-909 (1998). The court further held that Article VIII places an impermissible burden on the candidates' First Amendment right to speak freely on the issue of term limits by "punish[ing] candidates for speaking out against term limits" through putting "negative words next to their names on the ballot," and by "us[ing] the threat of being disadvantaged in the election to coerce candidates into taking a position on the term limits issue." 996 F. Supp., at 910; see 996 F. Supp., at 920. Lastly, the court found Article VIII to be an indirect and unconstitutional attempt by the people of Missouri to interject themselves into the amending process authorized by Article V of the Federal Constitution. In doing so, the court endorsed the reasoning of other decisions invalidating provisions similar *517 to Article VIII on the ground that negative ballot designations "place an undue influence on the legislator to vote in favor of term limits rather than exercise his or her own independent judgment as is contemplated by Article V." 996 F. Supp., at 916; see 996 F. Supp., at 920.[7] Accordingly, the court permanently enjoined petitioner from enforcing §§ 15 through 19 of Article VIII. The United States Court of Appeals for the Eighth Circuit affirmed.[8] Like the District Court, it found that Article VIII "threatens a penalty that is serious enough to compel candidates to speak—the potential political damage of the ballot labels"; "seeks to impose an additional qualification for candidacy for Congress and does so in a manner which is highly likely to handicap term limit opponents and other labeled candidates"; and "coerce[s] legislators into proposing or ratifying a particular constitutional amendment" in violation of Article V. 191 F.3d 911, 918, 924, 925 (1999). The Court of Appeals also observed that, contrary to the Speech or Debate Clause in Art. I, § 6, cl. 1, of the Federal Constitution, Article VIII "establishes a regime in which a state officer—the secretary of state—is permitted to judge and punish Members of Congress for their legislative actions or positions." 191 F.3d, at 922.[9] *518 Although the Court of Appeals' decision is consistent with the views of other courts that have passed on similar voter initiatives,[10] the importance of the case prompted our grant of certiorari. 529 U.S. 1065 (2000). II Article VIII furthers the State's interest in adding a term limits amendment to the Federal Constitution in two ways. It encourages Missouri's congressional delegation to support such an amendment in order to avoid an unfavorable ballot designation when running for reelection. And it encourages the election of representatives who favor such an amendment. Petitioner argues that Article VIII is an exercise of the "right of the people to instruct" their representatives reserved by the Tenth Amendment,[11] and that it is a permissible regulation of the "manner" of electing federal legislators within the authority delegated to the States by the Elections Clause, Art. I, § 4, cl. 1.[12] Because these two arguments rely on different sources of state power, it is *519 appropriate at the outset to review the distinction in kind between powers reserved to the States and those delegated to the States by the Constitution. As we discussed at length in U. S. Term Limits, the Constitution "draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States." 514 U.S., at 801. On the one hand, in the words of Chief Justice Marshall, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819). The text of the Tenth Amendment delineates this principle: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." On the other hand, as Justice Story observed, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution did not delegate to them." 1 Commentaries on the Constitution of the United States § 627 (3d ed. 1858) (hereinafter Story). Simply put, "[n]o state can say, that it has reserved, what it never possessed." Ibid. III[*] To be persuasive, petitioner's argument that Article VIII is a valid exercise of the State's reserved power to give binding instructions to its representatives would have to overcome three hurdles. First, the historical precedents on *520 which she relies for the proposition that the States have such a reserved power are distinguishable. Second, there is countervailing historical evidence. Third, and of decisive significance, the means employed to issue the instructions, ballots for congressional elections, are unacceptable unless Article VIII is a permissible exercise of the State's power to regulate the manner of holding elections for Senators and Representatives. Only a brief comment on the first two points is necessary. Petitioner relies heavily on the part instructions played in the Second Continental Congress, the Constitutional Convention, the early Congress, the selection of United States Senators before the passage of the Seventeenth Amendment, and the ratification of certain federal constitutional amendments.[13] However, unlike Article VIII, none of petitioner's examples was coupled with an express legal sanction for disobedience.[14] At best, as an amicus curiae for petitioner points out, and as petitioner herself acknowledges, such historical instructions at one point in the early Republic may have had "de facto binding force" because it might have been "political suicide" not to follow them.[15] This evidence falls short of demonstrating that either the people or the States *521 had a right to give legally binding, i. e., nonadvisory, instructions to their representatives that the Tenth Amendment reserved, much less that such a right would apply to federal representatives. See U. S. Term Limits, Inc. v. Thornton, 514 U. S., at 802 (Tenth Amendment "could only `reserve' that which existed before"); cf. McCulloch v. Maryland, 4 Wheat. 316, 430 (1819) (rejecting argument that States had reserved power to tax corporations chartered by Congress because an "original right to tax" such federal entities "never existed"). Indeed, contrary evidence is provided by the fact that the First Congress rejected a proposal to insert a right of the people "to instruct their representatives" into what would become the First Amendment. 1 Annals of Cong. 732 (1789). The fact that the proposal was made suggests that its proponents thought it necessary, and the fact that it was rejected by a vote of 41 to 10, id., at 747, suggests that we should give weight to the views of those who opposed the proposal. It was their view that binding instructions would undermine an essential attribute of Congress by eviscerating the deliberative nature of that National Assembly. See, e. g., id., at 735 (remarks of Rep. Sherman) ("[W]hen the people have chosen a representative, it is his duty to meet others from the different parts of the Union, and consult, and agree with them to such acts as are for the general benefit of the whole community. If they were to be guided by instructions, there would be no use in deliberation; all that a man would have to do, would be to produce his instructions, and lay them on the table, and let them speak for him"). As a result, James Madison, then a Representative from Virginia, concluded that a right to issue binding instructions would "run the risk of losing the whole system." Id., at 739; see also id., at 735 (remarks of Rep. Clymer) (proposed right to give binding instructions was "a most dangerous principle, utterly destructive of all ideas of an independent and deliberative *522 body, which are essential requisites in the Legislatures of free Governments").[16] In any event, even assuming the existence of the reserved right that petitioner asserts (and that Article VIII falls within its ambit), the question remains whether the State may use ballots for congressional elections as a means of giving its instructions binding force. IV The federal offices at stake "aris[e] from the Constitution itself." U. S. Term Limits, Inc. v. Thornton, 514 U. S., at 805. Because any state authority to regulate election to those offices could not precede their very creation by the Constitution, such power "had to be delegated to, rather than reserved by, the States." Id., at 804. Cf. 1 Story § 627 ("It is no original prerogative of state power to appoint a representative, a senator, or president for the union"). Through the Elections Clause, the Constitution delegated to the States the power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives," subject to a grant of authority to Congress to "make or alter such Regulations." Art. I, § 4, cl. 1; see United States v. Classic, 313 U.S. 299, 315 (1941). No other constitutional *523 provision gives the States authority over congressional elections, and no such authority could be reserved under the Tenth Amendment. By process of elimination, the States may regulate the incidents of such elections, including balloting, only within the exclusive delegation of power under the Elections Clause. With respect to the Elections Clause, petitioner argues that Article VIII "merely regulates the manner in which elections are held by disclosing information about congressional candidates."[17] As such, petitioner concludes, Article VIII is a valid exercise of Missouri's delegated power. We disagree. To be sure, the Elections Clause grants to the States "broad power" to prescribe the procedural mechanisms for holding congressional elections. Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986); see also Smiley v. Holm, 285 U.S. 355, 366 (1932) ("It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections"). Nevertheless, Article VIII falls outside of that grant of authority. As we made clear in U. S. Term Limits, "the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." 514 U.S., at 833-834. Article VIII is not a procedural regulation. It does not regulate the time of elections; it does not regulate the place of elections; nor, we believe, does it regulate the manner of elections.[18] As to the last point, Article VIII bears no relation to the "manner" of elections as we understand it, for in our commonsense view that term encompasses matters like "notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt *524 practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns." Smiley, 285 U. S., at 366; see also U. S. Term Limits, Inc. v. Thornton, 514 U. S., at 833. In short, Article VIII is not among "the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved," Smiley, 285 U. S., at 366, ensuring that elections are "fair and honest," and that "some sort of order, rather than chaos, is to accompany the democratic process," Storer v. Brown, 415 U.S. 724, 730 (1974). Rather, Article VIII is plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal. Cf. Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9 (1983) ("We have upheld generally applicable and evenhanded [ballot access] restrictions that protect the integrity and reliability of the electoral process itself"). As noted, the state provision does not just "instruct" each member of Missouri's congressional delegation to promote in certain ways the passage of the specified term limits amendment. It also attaches a concrete consequence to noncompliance—the printing of the statement "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" by the candidate's name on all primary and general election ballots. Likewise, a nonincumbent candidate who does not pledge to follow the instruction receives the ballot designation "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS." In describing the two labels, the courts below have employed terms such as "pejorative," "negative," "derogatory," "`intentionally intimidating,' " "particularly harmful," "politically damaging," "a serious sanction," "a penalty," and "official denunciation." 191 F.3d, at 918, 919, 922, 925; 996 F. Supp., at 908; see id., at 910, 916. The general counsel to *525 petitioner's office, no less, has denominated the labels as "the Scarlet Letter." App. 34-35. We agree with the sense of these descriptions. They convey the substantial political risk the ballot labels impose on current and prospective congressional members who, for one reason or another, fail to comply with the conditions set forth in Article VIII for passing its term limits amendment. Although petitioner now claims that the labels "merely" inform Missouri voters about a candidate's compliance with Article VIII, she has acknowledged under oath that the ballot designations would handicap candidates for the United States Congress. Id., at 66. To us, that is exactly the intended effect of Article VIII. Indeed, it seems clear that the adverse labels handicap candidates "at the most crucial stage in the election process—the instant before the vote is cast." Anderson v. Martin, 375 U.S. 399, 402 (1964). At the same time, "by directing the citizen's attention to the single consideration" of the candidates' fidelity to term limits, the labels imply that the issue "is an important—perhaps paramount—consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot" against candidates branded as unfaithful. Ibid. While the precise damage the labels may exact on candidates is disputed between the parties, the labels surely place their targets at a political disadvantage to unmarked candidates for congressional office.[19] Thus, far from *526 regulating the procedural mechanisms of elections, Article VIII attempts to "dictate electoral outcomes." U. S. Term Limits, Inc. v. Thornton, 514 U. S., at 833-834. Such "regulation" of congressional elections simply is not authorized by the Elections Clause.[20] *527 Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

In U. S. Term Limits, we reviewed a challenge to an Arkansas law that prohibited the name of an otherwise eligible candidate for the United States Congress from appearing on the general election ballot if he or she had already served three terms in the House of Representatives or two terms in the Senate. We held that the ballot restriction was an indirect attempt to impose term limits on congressional incumbents that violated the Qualifications Clauses in Article I of the Constitution rather than a permissible exercise of the State's power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives" within the meaning of Article I, 4, cl. 1. In response to that decision, the voters of Missouri adopted in 1996 an amendment to Article VIII[1] of their State Constitution designed to lead to the adoption of a specified "Congressional Term Limits Amendment" to the Federal Constitution. At issue in this case is the constitutionality of Article VIII. *514 I Article VIII "instruct[s]" each Member of Missouri's congressional delegation "to use all of his or her delegated powers to pass the Congressional Term Limits Amendment" set forth in 16 of the Article. Mo. Const., Art. VIII, 17(1). That proposed amendment would limit service in the United States Congress to three terms in the House of Representatives and two terms in the Senate.[2] Three provisions in Article VIII combine to advance its purpose. Section 17 prescribes that the statement "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" be printed on all primary and general ballots adjacent to the name of a Senator or Representative who fails to take any one of eight legislative acts in support of the proposed amendment.[3] Section 18 provides that the statement "DE- *515 CLINED TO PLEDGE TO SUPPORT TERM LIMITS" be printed on all primary and general election ballots next to the name of every nonincumbent congressional candidate who refuses to take a "Term Limit" pledge that commits the candidate, if elected, to performing the legislative acts enumerated in 17.[4] And 19 directs the Missouri Secretary of State to determine and declare, pursuant to 17 and 18, whether either statement should be printed alongside the name of each candidate for Congress.[5] *516 Respondent Don Gralike was a nonincumbent candidate for election in to the United States House of Representatives from Missouri's Third Congressional District. A month after Article VIII was amended, Gralike brought suit[6] in the United States District Court for the Western District of Missouri to enjoin petitioner, the Secretary of State of Missouri, from implementing the Article, which the complaint alleges violates several provisions of the Federal Constitution. The District Court decided the case on the pleadings, granting Gralike's motion for summary judgment. The court first held that Article VIII contravened the Qualifications Clauses of Article I of the Federal Constitution because it "has the sole purpose of creating additional qualifications for Congress indirectly and has the likely effect of handicapping a class of candidates for Congress." ; see The court further held that Article VIII places an impermissible burden on the candidates' First Amendment right to speak freely on the issue of term limits by "punish[ing] candidates for speaking out against term limits" through putting "negative words next to their names on the ballot," and by "us[ing] the threat of being disadvantaged in the election to coerce candidates into taking a position on the term limits issue." ; see 996 F. Supp., at Lastly, the court found Article VIII to be an indirect and unconstitutional attempt by the people of Missouri to interject themselves into the amending process authorized by Article V of the Federal Constitution. In doing so, the court endorsed the reasoning of other decisions invalidating provisions similar *517 to Article VIII on the ground that negative ballot designations "place an undue influence on the legislator to vote in favor of term limits rather than exercise his or her own independent judgment as is contemplated by Article V." ; see 996 F. Supp., at[7] Accordingly, the court permanently enjoined petitioner from enforcing 15 through 19 of Article VIII. The United States Court of Appeals for the Eighth Circuit affirmed.[8] Like the District Court, it found that Article VIII "threatens a penalty that is serious enough to compel candidates to speak—the potential political damage of the ballot labels"; "seeks to impose an additional qualification for candidacy for Congress and does so in a manner which is highly likely to handicap term limit opponents and other labeled candidates"; and "coerce[s] legislators into proposing or ratifying a particular constitutional amendment" in violation of Article V. The Court of Appeals also observed that, contrary to the Speech or Debate Clause in Art. I, 6, cl. 1, of the Federal Constitution, Article VIII "establishes a regime in which a state officer—the secretary of state—is permitted to judge and punish Members of Congress for their legislative actions or positions."[9] *518 Although the Court of Appeals' decision is consistent with the views of other courts that have passed on similar voter initiatives,[10] the importance of the case prompted our grant of certiorari. II Article VIII furthers the State's interest in adding a term limits amendment to the Federal Constitution in two ways. It encourages Missouri's congressional delegation to support such an amendment in order to avoid an unfavorable ballot designation when running for reelection. And it encourages the election of representatives who favor such an amendment. Petitioner argues that Article VIII is an exercise of the "right of the people to instruct" their representatives reserved by the Tenth Amendment,[11] and that it is a permissible regulation of the "manner" of electing federal legislators within the authority delegated to the States by the Elections Clause, Art. I, 4, cl. 1.[12] Because these two arguments rely on different sources of state power, it is *519 appropriate at the outset to review the distinction in kind between powers reserved to the States and those delegated to the States by the Constitution. As we discussed at length in U. S. Term Limits, the Constitution "draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States." On the one hand, in the words of Chief Justice Marshall, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." The text of the Tenth Amendment delineates this principle: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." On the other hand, as Justice Story observed, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution did not delegate to them." 1 Commentaries on the Constitution of the United States 627 (3d ed. 1858) (hereinafter Story). Simply put, "[n]o state can say, that it has reserved, what it never possessed." III[*] To be persuasive, petitioner's argument that Article VIII is a valid exercise of the State's reserved power to give binding instructions to its representatives would have to overcome three hurdles. First, the historical precedents on *520 which she relies for the proposition that the States have such a reserved power are distinguishable. Second, there is countervailing historical evidence. Third, and of decisive significance, the means employed to issue the instructions, ballots for congressional elections, are unacceptable unless Article VIII is a permissible exercise of the State's power to regulate the manner of holding elections for Senators and Representatives. Only a brief comment on the first two points is necessary. Petitioner relies heavily on the part instructions played in the Second Continental Congress, the Constitutional Convention, the early Congress, the selection of United States Senators before the passage of the Seventeenth Amendment, and the ratification of certain federal constitutional amendments.[13] However, unlike Article VIII, none of petitioner's examples was coupled with an express legal sanction for disobedience.[14] At best, as an amicus curiae for petitioner points out, and as petitioner herself acknowledges, such historical instructions at one point in the early Republic may have had "de facto binding force" because it might have been "political suicide" not to follow them.[15] This evidence falls short of demonstrating that either the people or the States *521 had a right to give legally binding, i. e., nonadvisory, instructions to their representatives that the Tenth Amendment reserved, much less that such a right would apply to federal representatives. See U. S. Term Limits, ; cf. Indeed, contrary evidence is provided by the fact that the First Congress rejected a proposal to insert a right of the people "to instruct their representatives" into what would become the First Amendment. 1 Annals of Cong. 732 (1789). The fact that the proposal was made suggests that its proponents thought it necessary, and the fact that it was rejected by a vote of 41 to 10, suggests that we should give weight to the views of those who opposed the proposal. It was their view that binding instructions would undermine an essential attribute of Congress by eviscerating the deliberative nature of that National Assembly. See, e. g., ("[W]hen the people have chosen a representative, it is his duty to meet others from the different parts of the Union, and consult, and agree with them to such acts as are for the general benefit of the whole community. If they were to be guided by instructions, there would be no use in deliberation; all that a man would have to do, would be to produce his instructions, and lay them on the table, and let them speak for him"). As a result, James Madison, then a Representative from Virginia, concluded that a right to issue binding instructions would "run the risk of losing the whole system." ; see also (proposed right to give binding instructions was "a most dangerous principle, utterly destructive of all ideas of an independent and deliberative *522 body, which are essential requisites in the Legislatures of free Governments").[16] In any event, even assuming the existence of the reserved right that petitioner asserts (and that Article VIII falls within its ambit), the question remains whether the State may use ballots for congressional elections as a means of giving its instructions binding force. IV The federal offices at stake "aris[e] from the Constitution itself." U. S. Term Limits, Because any state authority to regulate election to those offices could not precede their very creation by the Constitution, such power "had to be delegated to, rather than reserved by, the States." Cf. 1 Story 627 ("It is no original prerogative of state power to appoint a representative, a senator, or president for the union"). Through the Elections Clause, the Constitution delegated to the States the power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives," subject to a grant of authority to Congress to "make or alter such Regulations." Art. I, 4, cl. 1; see United No other constitutional *523 provision gives the States authority over congressional elections, and no such authority could be reserved under the Tenth Amendment. By process of elimination, the States may regulate the incidents of such elections, including balloting, only within the exclusive delegation of power under the Elections Clause. With respect to the Elections Clause, petitioner argues that Article VIII "merely regulates the manner in which elections are held by disclosing information about congressional candidates."[17] As such, petitioner concludes, Article VIII is a valid exercise of Missouri's delegated power. We disagree. To be sure, the Elections Clause grants to the States "broad power" to prescribe the procedural mechanisms for holding congressional elections. ; see also (2) Nevertheless, Article VIII falls outside of that grant of authority. As we made clear in U. S. Term Limits, "the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." -834. Article VIII is not a procedural regulation. It does not regulate the time of elections; it does not regulate the place of elections; nor, we believe, does it regulate the manner of elections.[18] As to the last point, Article VIII bears no relation to the "manner" of elections as we understand it, for in our commonsense view that term encompasses matters like "notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt *524 practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns." 285 U. S., at ; see also U. S. Term Limits, In short, Article VIII is not among "the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved," 285 U. S., at ensuring that elections are "fair and honest," and that "some sort of order, rather than chaos, is to accompany the democratic process," Rather, Article VIII is plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal. Cf. As noted, the state provision does not just "instruct" each member of Missouri's congressional delegation to promote in certain ways the passage of the specified term limits amendment. It also attaches a concrete consequence to noncompliance—the printing of the statement "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" by the candidate's name on all primary and general election ballots. Likewise, a nonincumbent candidate who does not pledge to follow the instruction receives the ballot designation "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS." In describing the two labels, the courts below have employed terms such as "pejorative," "negative," "derogatory," "`intentionally intimidating,' " "particularly harmful," "politically damaging," "a serious sanction," "a penalty," and "official denunciation." 919, 922, 925; ; see The general counsel to *525 petitioner's office, no less, has denominated the labels as "the Scarlet Letter." App. 34-35. We agree with the sense of these descriptions. They convey the substantial political risk the ballot labels impose on current and prospective congressional members who, for one reason or another, fail to comply with the conditions set forth in Article VIII for passing its term limits amendment. Although petitioner now claims that the labels "merely" inform Missouri voters about a candidate's compliance with Article VIII, she has acknowledged under oath that the ballot designations would handicap candidates for the United States Congress. To us, that is exactly the intended effect of Article VIII. Indeed, it seems clear that the adverse labels handicap candidates "at the most crucial stage in the election process—the instant before the vote is cast." At the same time, "by directing the citizen's attention to the single consideration" of the candidates' fidelity to term limits, the labels imply that the issue "is an important—perhaps paramount—consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot" against candidates branded as unfaithful. While the precise damage the labels may exact on candidates is disputed between the parties, the labels surely place their targets at a political disadvantage to unmarked candidates for congressional office.[19] Thus, far from *526 regulating the procedural mechanisms of elections, Article VIII attempts to "dictate electoral outcomes." U. S. Term Limits, -834. Such "regulation" of congressional elections simply is not authorized by the Elections Clause.[20] *527 Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Kennedy

concurring

Cook v. Gralike

2001-02-28

https://www.courtlistener.com/opinion/2621075/cook-v-gralike/

https://www.courtlistener.com/api/rest/v3/clusters/2621075/

2000-027

I join the opinion of the Court, holding § 15 et seq. of Article VIII of the Missouri Constitution violative of the Constitution of the United States. It seems appropriate, however, to add these brief observations with respect to Part III of the opinion. The Court does not say the States are disabled from requesting specific action from Congress or from expressing their concerns to it. As the Court holds, however, the mechanism the State seeks to employ here goes well beyond this prerogative. A State is not permitted to interpose itself between the people and their National Government as it seeks to do here. Whether a State's concern is with the proposed enactment of a constitutional amendment or an ordinary federal statute it simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place, and manner of elections pursuant to Article I, § 4. As the Court observed in U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Elections Clause is a "grant of authority to issue procedural regulations," and not "a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." Id., at 833-834. The Elections Clause thus delegates but limited power over federal elections to the States. Id., at 804. The Court rules, as it must, that the amendments to Article VIII of the Missouri Constitution do not regulate the time or place of federal elections; rather, those provisions are an attempt to control the actions of the State's congressional delegation. *528 The dispositive principle in this case is fundamental to the Constitution, to the idea of federalism, and to the theory of representative government. The principle is that Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside. The Constitution was ratified by Conventions in the several States, not by the States themselves, U. S. Const., Art. VII, a historical fact and a constitutional imperative which underscore the proposition that the Constitution was ordained and established by the people of the United States. U. S. Const., preamble. The idea of federalism is that a National Legislature enacts laws which bind the people as individuals, not as citizens of a State; and, it follows, freedom is most secure if the people themselves, not the States as intermediaries, hold their federal legislators to account for the conduct of their office. If state enactments were allowed to condition or control certain actions of federal legislators, accountability would be blurred, with the legislators having the excuse of saying that they did not act in the exercise of their best judgment but simply in conformance with a state mandate. As noted in the concurring opinion in Thornton, "[n]othing in the Constitution or The Federalist Papers . . . supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives." 514 U.S., at 842. Yet that is just what Missouri seeks to do through its law—to wield the power granted to it by the Elections Clause to handicap those who seek federal office by affixing pejorative labels next to their names on the ballot if they do not pledge to support the State's preferred position on a certain issue. Neither the design of the Constitution nor sound principles of representative government are consistent with the right or power of a State to interfere with the direct line of accountability between the National Legislature and the people who elect it. For these reasons Article VIII is void. *529 This said, it must be noted that when the Constitution was enacted, respectful petitions to legislators were an accepted mode of urging legislative action. See W. Miller, Arguing About Slavery 105-107 (1995). This right is preserved to individuals (the people) in the First Amendment. Even if a State, as an entity, is not itself protected by the Petition Clause, there is no principle prohibiting a state legislature from following a parallel course and by a memorial resolution requesting the Congress of the United States to pay heed to certain state concerns. From the earliest days of our Republic to the present time, States have done so in the context of federal legislation. See, e. g., 22 Annals of Cong. 153-154 (1811) (reprinting a resolution by the General Assembly of the Commonwealth of Pennsylvania requesting that the charter of the Bank of the United States not be renewed); 2000 Ala. Acts 66 (requesting targeted relief for Medicare cuts); 2000 Kan. Sess. Laws, ch. 186 (urging Congress to allow state-inspected meat to be shipped in interstate commerce). Indeed, the situation was even more complex in the early days of our Nation, when Senators were appointed by state legislatures rather than directly elected. At that time, it appears that some state legislatures followed a practice of instructing the Senators whom they had appointed to pass legislation, while only requesting that the Representatives, who had been elected by the people, do so. See 22 Annals of Cong., at 153-154. I do not believe that the situation should be any different with respect to a proposed constitutional amendment, and indeed history bears this out. See, e. g., 13 Annals of Cong. 95-96 (1803) (reprinting a resolution from the State of Vermont and the Commonwealth of Massachusetts requesting that Congress propose to the legislatures of the States a constitutional amendment akin to the Twelfth Amendment). The fact that the Members of the First Congress decided not to codify a right to instruct legislative representatives does not, in my view, prove that they *530 intended to prohibit nonbinding petitions or memorials by the State as an entity. If there are to be cases in which a close question exists regarding whether the State has exceeded its constitutional authority in attempting to influence congressional action, this case is not one of them. In today's case the question is not close. Here the State attempts to intrude upon the relationship between the people and their congressional delegates by seeking to control or confine the discretion of those delegates, and the interference is not permissible. With these observations, I concur in the Court's opinion. Justice Thomas, concurring in Parts I and IV and concurring in the judgment. I continue to believe that, because they possess "reserved" powers, "the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so." U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 846 (1995) (Thomas, J., dissenting). For this reason, I disagree with the Court's premise, derived from U. S. Term Limits, that the States have no authority to regulate congressional elections except for the authority that the Constitution expressly delegates to them. See ante, at 522. Nonetheless, the parties conceded the validity of this premise, see Brief for Petitioner 25-26; Brief for Respondents 12-13, and I therefore concur. Chief Justice Rehnquist, with whom Justice O'Connor joins, concurring in the judgment. I would affirm the judgment of the Court of Appeals, but on the ground that Missouri's Article VIII violates the First Amendment to the United States Constitution. Specifically, I believe that Article VIII violates the First Amendment right of a political candidate, once lawfully on the ballot, to *531 have his name appear unaccompanied by pejorative language required by the State. Our ballot access cases based on First Amendment grounds have rarely distinguished between the rights of candidates and the rights of voters. In Bullock v. Carter, 405 U.S. 134, 143 (1972), we said: "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." And in Anderson v. Celebrezze, 460 U.S. 780, 787 (1983), we said that "voters can assert their preferences only through candidates or parties or both." Actions such as the present one challenging ballot provisions have in most instances been brought by the candidates themselves, and no one questions the standing of respondents Gralike and Harmon to raise a First Amendment challenge to such laws.[*] Article I, § 4, provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ." Missouri justifies Article VIII as a "time, place, and manner" regulation of election. Restrictions of this kind are valid "provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Missouri's Article VIII flunks two of these three requirements. Article VIII is not only not content neutral, but it *532 actually discriminates on the basis of viewpoint because only those candidates who fail to conform to the State's position receive derogatory labels. The result is that the State injects itself into the election process at an absolutely critical point—the composition of the ballot, which is the last thing the voter sees before he makes his choice—and does so in a way that is not neutral as to issues or candidates. The candidates who are thus singled out have no means of replying to their designation which would be equally effective with the voter. In Anderson v. Martin, 375 U.S. 399 (1964), we held that a Louisiana statute requiring the designation of a candidate's race on the ballot violated the Equal Protection Clause. In describing the effect of such a designation, the Court said: "[B]y directing the citizen's attention to the single consideration of race or color, the State indicates that a candidate's race or color is an important—perhaps paramount—consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot along racial lines." Id., at 402. So, too, here the State has chosen one and only one issue to comment on the position of the candidates. During the campaign, they may debate tax reform, Social Security, national security, and a host of other issues; but when it comes to the ballot on which one or the other of them is chosen, the State is saying that the issue of term limits is paramount. Although uttered in a different context, what we said in Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972), is equally applicable here: "[Government] may not select which issues are worth discussing or debating." If other Missouri officials feel strongly about the need for term limits, they are free to urge rejection of candidates who do not share their view and refuse to "take the pledge." Such candidates are able to respond to that sort of speech with speech of their own. But the State itself may not skew the ballot listings in this way without violating the First Amendment.

I join the opinion of the Court, holding 15 et seq. of Article VIII of the Missouri Constitution violative of the Constitution of the United States. It seems appropriate, however, to add these brief observations with respect to Part III of the opinion. The Court does not say the States are disabled from requesting specific action from Congress or from expressing their concerns to it. As the Court holds, however, the mechanism the State seeks to employ here goes well beyond this prerogative. A State is not permitted to interpose itself between the people and their National Government as it seeks to do here. Whether a State's concern is with the proposed enactment of a constitutional amendment or an ordinary federal statute it simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place, and manner of elections pursuant to Article I, 4. As the Court observed in U. S. Term Limits, the Elections Clause is a "grant of authority to issue procedural regulations," and not "a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints." The Elections Clause thus delegates but limited power over federal elections to the States. The Court rules, as it must, that the amendments to Article VIII of the Missouri Constitution do not regulate the time or place of federal elections; rather, those provisions are an attempt to control the actions of the State's congressional delegation. *528 The dispositive principle in this case is fundamental to the Constitution, to the idea of federalism, and to the theory of representative government. The principle is that Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside. The Constitution was ratified by Conventions in the several States, not by the States themselves, U. S. Const., Art. VII, a historical fact and a constitutional imperative which underscore the proposition that the Constitution was ordained and established by the people of the United States. U. S. Const., preamble. The idea of federalism is that a National Legislature enacts laws which bind the people as individuals, not as citizens of a State; and, it follows, freedom is most secure if the people themselves, not the States as intermediaries, hold their federal legislators to account for the conduct of their office. If state enactments were allowed to condition or control certain actions of federal legislators, accountability would be blurred, with the legislators having the excuse of saying that they did not act in the exercise of their best judgment but simply in conformance with a state mandate. As noted in the concurring opinion in Thornton, "[n]othing in the Constitution or The Federalist Papers supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives." Yet that is just what Missouri seeks to do through its law—to wield the power granted to it by the Elections Clause to handicap those who seek federal office by affixing pejorative labels next to their names on the ballot if they do not pledge to support the State's preferred position on a certain issue. Neither the design of the Constitution nor sound principles of representative government are consistent with the right or power of a State to interfere with the direct line of accountability between the National Legislature and the people who elect it. For these reasons Article VIII is void. *529 This said, it must be noted that when the Constitution was enacted, respectful petitions to legislators were an accepted mode of urging legislative action. See W. Miller, Arguing About Slavery 105-107 This right is preserved to individuals (the people) in the First Amendment. Even if a State, as an entity, is not itself protected by the Petition Clause, there is no principle prohibiting a state legislature from following a parallel course and by a memorial resolution requesting the Congress of the United States to pay heed to certain state concerns. From the earliest days of our Republic to the present time, States have done so in the context of federal legislation. See, e. g., 22 Annals of Cong. 153-154 (1811) (reprinting a resolution by the General Assembly of the Commonwealth of Pennsylvania requesting that the charter of the Bank of the United States not be renewed); 2000 Ala. Acts 66 (requesting targeted relief for Medicare cuts); 2000 Kan. Sess. Laws, ch. 186 (urging Congress to allow state-inspected meat to be shipped in interstate commerce). Indeed, the situation was even more complex in the early days of our Nation, when Senators were appointed by state legislatures rather than directly elected. At that time, it appears that some state legislatures followed a practice of instructing the Senators whom they had appointed to pass legislation, while only requesting that the Representatives, who had been elected by the people, do so. See 22 Annals of Cong., at 153-154. I do not believe that the situation should be any different with respect to a proposed constitutional amendment, and indeed history bears this out. See, e. g., 13 Annals of Cong. 95- (1803) (reprinting a resolution from the State of Vermont and the Commonwealth of Massachusetts requesting that Congress propose to the legislatures of the States a constitutional amendment akin to the Twelfth Amendment). The fact that the Members of the First Congress decided not to codify a right to instruct legislative representatives does not, in my view, prove that they *530 intended to prohibit nonbinding petitions or memorials by the State as an entity. If there are to be cases in which a close question exists regarding whether the State has exceeded its constitutional authority in attempting to influence congressional action, this case is not one of them. In today's case the question is not close. Here the State attempts to intrude upon the relationship between the people and their congressional delegates by seeking to control or confine the discretion of those delegates, and the interference is not permissible. With these observations, I concur in the Court's opinion. Justice Thomas, concurring in Parts I and IV and concurring in the judgment. I continue to believe that, because they possess "reserved" powers, "the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so." U. S. Term Limits, For this reason, I disagree with the Court's premise, derived from U. S. Term Limits, that the States have no authority to regulate congressional elections except for the authority that the Constitution expressly delegates to them. See ante, at 522. Nonetheless, the parties conceded the validity of this premise, see Brief for Petitioner 25-26; Brief for Respondents 12-13, and I therefore concur. Chief Justice Rehnquist, with whom Justice O'Connor joins, concurring in the judgment. I would affirm the judgment of the Court of Appeals, but on the ground that Missouri's Article VIII violates the First Amendment to the United States Constitution. Specifically, I believe that Article VIII violates the First Amendment right of a political candidate, once lawfully on the ballot, to *531 have his name appear unaccompanied by pejorative language required by the State. Our ballot access cases based on First Amendment grounds have rarely distinguished between the rights of candidates and the rights of voters. In we said: "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." And in we said that "voters can assert their preferences only through candidates or parties or both." Actions such as the present one challenging ballot provisions have in most instances been brought by the candidates themselves, and no one questions the standing of respondents Gralike and Harmon to raise a First Amendment challenge to such laws.[*] Article I, 4, provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof" Missouri justifies Article VIII as a "time, place, and manner" regulation of election. Restrictions of this kind are valid "provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Missouri's Article VIII flunks two of these three requirements. Article VIII is not only not content neutral, but it *532 actually discriminates on the basis of viewpoint because only those candidates who fail to conform to the State's position receive derogatory labels. The result is that the State injects itself into the election process at an absolutely critical point—the composition of the ballot, which is the last thing the voter sees before he makes his choice—and does so in a way that is not neutral as to issues or candidates. The candidates who are thus singled out have no means of replying to their designation which would be equally effective with the voter. In we held that a Louisiana statute requiring the designation of a candidate's race on the ballot violated the Equal Protection Clause. In describing the effect of such a designation, the Court said: "[B]y directing the citizen's attention to the single consideration of race or color, the State indicates that a candidate's race or color is an important—perhaps paramount—consideration in the citizen's choice, which may decisively influence the citizen to cast his ballot along racial lines." So, too, here the State has chosen one and only one issue to comment on the position of the candidates. During the campaign, they may debate tax reform, Social Security, national security, and a host of other issues; but when it comes to the ballot on which one or the other of them is chosen, the State is saying that the issue of term limits is paramount. Although uttered in a different context, what we said in Police Dept. of is equally applicable here: "[Government] may not select which issues are worth discussing or debating." If other Missouri officials feel strongly about the need for term limits, they are free to urge rejection of candidates who do not share their view and refuse to "take the pledge." Such candidates are able to respond to that sort of speech with speech of their own. But the State itself may not skew the ballot listings in this way without violating the First Amendment.

Justice Ginsburg

majority

Arizona v. Johnson

2009-01-26

https://www.courtlistener.com/opinion/145912/arizona-v-johnson/

https://www.courtlistener.com/api/rest/v3/clusters/145912/

2008-019

This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction. In a pathmarking decision, Terry v. Ohio, 392 U.S. 1 (1968), the Court considered whether an investigatory stop (tem porary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures. The Court upheld “stop and frisk” as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street en counter, Terry determined, when the police officer rea sonably suspects that the person apprehended is commit ting or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must rea sonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 2 ARIZONA v. JOHNSON Opinion of the Court U. S. 249, 255 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspi cion that the person subjected to the frisk is armed and dangerous. I On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood asso ciated with the Crips gang. At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation. Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a cita tion. At the time of the stop, the vehicle had three occu pants—the driver, a front-seat passenger, and a passenger in the back seat, Lemon Montrea Johnson, the respondent here. In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity. See App. 29–30. The three officers left their patrol car and approached the stopped vehicle. Machado instructed all of the occu pants to keep their hands visible. Id., at 14. He asked whether there were any weapons in the vehicle; all re sponded no. Id., at 15. Machado then directed the driver to get out of the car. Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop. Cite as: 555 U. S. ____ (2009) 3 Opinion of the Court See id., at 31. While Machado was getting the driver’s license and information about the vehicle’s registra tion and insurance, see id., at 42–43, Trevizo attended to Johnson. Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. Id., at 12. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. Id., at 17. She also noticed a scanner in Johnson’s jacket pocket, which “struck [her] as highly unusual and cause [for] concern,” because “most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” Id., at 16. In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him. He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year. 217 Ariz. 58, 60, 170 P.3d 667, 669 (App. 2007). Trevizo wanted to question Johnson away from the front-seat passenger to gain “intelligence about the gang [Johnson] might be in.” App. 19. For that reason, she asked him to get out of the car. Ibid. Johnson complied. Based on Trevizo’s observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that “he might have a weapon on him.” Id., at 20. When he exited the vehicle, she therefore “patted him down for officer safety.” Ibid. During the patdown, Tre vizo felt the butt of a gun near Johnson’s waist. 217 Ariz., at 60, 170 P. 3d, at 669. At that point Johnson began to struggle, and Trevizo placed him in handcuffs. Ibid. Johnson was charged in state court with, inter alia, possession of a weapon by a prohibited possessor. He 4 ARIZONA v. JOHNSON Opinion of the Court moved to suppress the evidence as the fruit of an unlawful search. The trial court denied the motion, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. See App. 74–78. A jury convicted Johnson of the gun-possession charge. See 217 Ariz., at 60–61, 170 P. 3d, at 669–670. A divided panel of the Arizona Court of Appeals re versed Johnson’s conviction. Id., at 59, 170 P. 3d, at 668. Recognizing that “Johnson was [lawfully] seized when the officers stopped the car,” id., at 62, 170 P. 3d, at 671, the court nevertheless concluded that prior to the frisk the detention had “evolved into a separate, consensual en counter stemming from an unrelated investigation by Trevizo of Johnson’s possible gang affiliation,” id., at 64, 170 P. 3d, at 673. Absent “reason to believe Johnson was involved in criminal activity,” the Arizona appeals court held, Trevizo “had no right to pat him down for weapons, even if she had reason to suspect he was armed and dan gerous.” Ibid. Judge Espinosa dissented. He found it “highly unrealis tic to conclude that merely because [Trevizo] was courte ous and Johnson cooperative, the ongoing and virtually simultaneous chain of events [had] somehow ‘evolved into a consensual encounter’ in the few short moments in volved.” Id., at 66, 170 P. 3d, at 675. Throughout the episode, he stressed, Johnson remained “seized as part of [a] valid traffic stop.” Ibid. Further, he maintained, Trevizo “had a reasonable basis to consider [Johnson] dangerous,” id., at 67, 170 P. 3d, at 676, and could there fore ensure her own safety and that of others at the scene by patting down Johnson for weapons. The Arizona Supreme Court denied review. No. CR–07– 0290–PR, 2007 Ariz. LEXIS 154 (Nov. 29, 2007). We granted certiorari, 554 U. S. ___ (2008), and now reverse the judgment of the Arizona Court of Appeals. Cite as: 555 U. S. ____ (2009) 5 Opinion of the Court II A We begin our consideration of the constitutionality of Officer Trevizo’s patdown of Johnson by looking back to the Court’s leading decision in Terry v. Ohio, 392 U.S. 1 (1968). Terry involved a stop for interrogation of men whose conduct had attracted the attention of a patrolling police officer. The officer’s observation led him reasonably to suspect that the men were casing a jewelry shop in preparation for a robbery. He conducted a patdown, which disclosed weapons concealed in the men’s overcoat pockets. This Court upheld the lower courts’ determinations that the interrogation was warranted and the patdown, per missible. See id., at 8. Terry established the legitimacy of an investigatory stop “in situations where [the police] may lack probable cause for an arrest.” Id., at 24. When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot, the Court explained, the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily de tained are armed and dangerous. Ibid. Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the patdown reasonable under the Fourth Amendment. Id., at 23–24, 27, 30–31. “[M]ost traffic stops,” this Court has observed, “resem ble, in duration and atmosphere, the kind of brief deten tion authorized in Terry.” Berkemer v. McCarty, 468 U.S. 420, 439, n. 29 (1984). Furthermore, the Court has recog nized that traffic stops are “especially fraught with danger to police officers.” Michigan v. Long, 463 U.S. 1032, 1047 (1983). “ ‘The risk of harm to both the police and the occu pants [of a stopped vehicle] is minimized,’ ” we have stressed, “ ‘if the officers routinely exercise unquestioned command of the situation.’ ” Maryland v. Wilson, 519 U.S. 6 ARIZONA v. JOHNSON Opinion of the Court 408, 414 (1997) (quoting Michigan v. Summers, 452 U.S. 692, 702–703 (1981)); see Brendlin, 551 U.S., at 258. Three decisions cumulatively portray Terry’s application in a traffic-stop setting: Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam); Maryland v. Wilson, 519 U.S. 408 (1997); and Brendlin v. California, 551 U.S. 249 (2007). In Mimms, the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U.S., at 111, n. 6. The government’s “legitimate and weighty” interest in officer safety, the Court said, outweighs the “de mini mis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. Id., at 110–111. Citing Terry as controlling, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver “might be armed and presently dangerous.” 434 U.S., at 112. Wilson held that the Mimms rule applied to passengers as well as to drivers. Specifically, the Court instructed that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” 519 U.S., at 415. “[T]he same weighty interest in officer safety,” the Court observed, “is present regardless of whether the occupant of the stopped car is a driver or passenger.” Id., at 413. It is true, the Court acknowledged, that in a lawful traffic stop, “[t]here is probable cause to believe that the driver has committed a minor vehicular offense,” but “there is no such reason to stop or detain the passengers.” Ibid. On the other hand, the Court emphasized, the risk of a violent encounter in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a Cite as: 555 U. S. ____ (2009) 7 Opinion of the Court more serious crime might be uncovered during the stop.” Id., at 414. “[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great as that of the driver.” Ibid. Moreover, the Court noted, “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, so “the additional intrusion on the passenger is minimal,” id., at 415. Completing the picture, Brendlin held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” 551 U.S., at 263. A passenger therefore has stand ing to challenge a stop’s constitutionality. Id., at 256–259. After Wilson, but before Brendlin, the Court had stated, in dictum, that officers who conduct “routine traffic stop[s]” may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa, 525 U.S. 113, 117–118 (1998). That forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms, Wilson, and Brendlin. B The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger. See 217 Ariz., at 64, 170 P.3d, at 673. But, that court concluded, once Officer Trevizo undertook to question Johnson on a matter unrelated to the traffic stop, i.e., Johnson’s gang affiliation, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. See id., at 65, 170 P. 3d, at 674. In support of the Arizona court’s portrayal of Trevizo’s interrogation of Johnson as “consensual,” Johnson emphasizes Trevizo’s testimony at the suppres sion hearing. Responding to the prosecutor’s questions, 8 ARIZONA v. JOHNSON Opinion of the Court Trevizo affirmed her belief that Johnson could have “re fused to get out of the car” and “to turn around for the pat down.” App. 41. It is not clear why the prosecutor, in opposing the sup pression motion, sought to portray the episode as consen sual. Cf. Florida v. Bostick, 501 U.S. 429 (1991) (holding that police officers’ search of a bus passenger’s luggage can be based on consent). In any event, Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. See App. 45. And during cross-examination, Trevizo did not dis agree when defense counsel asked “in fact you weren’t seeking [Johnson’s] permission . . . ?” Id., at 36. As the dissenting judge observed, “consensual” is an “unrealistic” characterization of the Trevizo-Johnson interaction. “[T]he encounter . . . took place within minutes of the stop”; the patdown followed “within mere moments” of Johnson’s exit from the vehicle; beyond genuine debate, the point at which Johnson could have felt free to leave had not yet occurred. See 217 Ariz., at 66, 170 P.3d, at 675.1 A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Nor mally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See Brendlin, 551 U.S., at 258. An officer’s inquiries into matters unrelated to the justifica tion for the traffic stop, this Court has made plain, do not —————— 1 The Court of Appeals majority did not assert that Johnson reasona bly could have felt free to leave. Instead, the court said “a reasonable person in Johnson’s position would have felt free to remain in the vehicle.” 217 Ariz. 58, 64, 170 P.3d 667, 673 (2007). That position, however, appears at odds with our decision in Maryland v. Wilson, 519 U.S. 408 (1997). See supra, at 6–7. Cite as: 555 U. S. ____ (2009) 9 Opinion of the Court convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100–101 (2005). In sum, as stated in Brendlin, a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. See 551 U.S., at 257. Nothing oc curred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permis sion.” Ibid. Officer Trevizo surely was not constitution ally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.2 * * * For the reasons stated, the judgment of the Arizona Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. —————— 2 The Arizona Court of Appeals assumed, “without deciding, that Trevizo had reasonable suspicion that Johnson was armed and danger ous.” 217 Ariz., at 64, 170 P.3d, at 673. We do not foreclose the appeals court’s consideration of that issue on remand

This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction. In a pathmarking decision, the Court considered whether an investigatory stop (tem porary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures. The Court upheld “stop and frisk” as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street en counter, Terry determined, when the police officer rea sonably suspects that the person apprehended is commit ting or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must rea sonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, we recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. v. California, 551 2 ARIZONA v. JOHNSON Opinion of the Court U. S. 249, 255 Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspi cion that the person subjected to the frisk is armed and dangerous. I On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood asso ciated with the Crips gang. At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation. Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a cita tion. At the time of the stop, the vehicle had three occu pants—the driver, a front-seat passenger, and a passenger in the back seat, Lemon Montrea Johnson, the respondent here. In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity. See App. 29–30. The three officers left their patrol car and approached the stopped vehicle. Machado instructed all of the occu pants to keep their hands visible. He asked whether there were any weapons in the vehicle; all re sponded no. Machado then directed the driver to get out of the car. Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop. Cite as: 555 U. S. (2009) 3 Opinion of the Court See While Machado was getting the driver’s license and information about the vehicle’s registra tion and insurance, see at 42–43, Trevizo attended to Johnson. Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. She also noticed a scanner in Johnson’s jacket pocket, which “struck [her] as highly unusual and cause [for] concern,” because “most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him. He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year. Trevizo wanted to question Johnson away from the front-seat passenger to gain “intelligence about the gang [Johnson] might be in.” App. 19. For that reason, she asked him to get out of the car. Johnson complied. Based on Trevizo’s observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that “he might have a weapon on him.” at 20. When he exited the vehicle, she therefore “patted him down for officer safety.” During the patdown, Tre vizo felt the butt of a gun near Johnson’s waist. 217 Ariz., at 170 P. 3d, at At that point Johnson began to struggle, and Trevizo placed him in handcuffs. Johnson was charged in state court with, inter alia, possession of a weapon by a prohibited possessor. He 4 ARIZONA v. JOHNSON Opinion of the Court moved to suppress the evidence as the fruit of an unlawful search. The trial court denied the motion, concluding that the stop was lawful and that Trevizo had cause to suspect Johnson was armed and dangerous. See App. 74–78. A jury convicted Johnson of the gun-possession charge. See 217 Ariz., at –, 170 P. 3d, at –0. A divided panel of the Arizona Court of Appeals re versed Johnson’s conviction. Recognizing that “Johnson was [lawfully] seized when the officers stopped the car,” the court nevertheless concluded that prior to the frisk the detention had “evolved into a separate, consensual en counter stemming from an unrelated investigation by Trevizo of Johnson’s possible gang affiliation,” Absent “reason to believe Johnson was involved in criminal activity,” the Arizona appeals court held, Trevizo “had no right to pat him down for weapons, even if she had reason to suspect he was armed and dan gerous.” Judge Espinosa dissented. He found it “highly unrealis tic to conclude that merely because [Trevizo] was courte ous and Johnson cooperative, the ongoing and virtually simultaneous chain of events [had] somehow ‘evolved into a consensual encounter’ in the few short moments in volved.” Throughout the episode, he stressed, Johnson remained “seized as part of [a] valid traffic stop.” Further, he maintained, Trevizo “had a reasonable basis to consider [Johnson] dangerous,” 170 P. 3d, 6, and could there fore ensure her own safety and that of others at the scene by patting down Johnson for weapons. The Arizona Supreme Court denied review. No. CR–07– 0290–PR, We granted certiorari, 554 U. S. (2008), and now reverse the judgment of the Arizona Court of Appeals. Cite as: 555 U. S. (2009) 5 Opinion of the Court II A We begin our consideration of the constitutionality of Officer Trevizo’s patdown of Johnson by looking back to the Court’s leading decision in Terry involved a stop for interrogation of men whose conduct had attracted the attention of a patrolling police officer. The officer’s observation led him reasonably to suspect that the men were casing a jewelry shop in preparation for a robbery. He conducted a patdown, which disclosed weapons concealed in the men’s overcoat pockets. This Court upheld the lower courts’ determinations that the interrogation was warranted and the patdown, per missible. See Terry established the legitimacy of an investigatory stop “in situations where [the police] may lack probable cause for an arrest.” When the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot, the Court explained, the police officer must be positioned to act instantly on reasonable suspicion that the persons temporarily de tained are armed and dangerous. Recognizing that a limited search of outer clothing for weapons serves to protect both the officer and the public, the Court held the patdown reasonable under the Fourth Amendment. at 23–24, 27, 30–31. “[M]ost traffic stops,” this Court has observed, “resem ble, in duration and atmosphere, the kind of brief deten tion authorized in Terry.” Berkemer v. McCarty, 468 U.S. 420, 439, n. 29 (1984). Furthermore, the Court has recog nized that traffic stops are “especially fraught with danger to police officers.” (1983). “ ‘The risk of harm to both the police and the occu pants [of a stopped vehicle] is minimized,’ ” we have stressed, “ ‘if the officers routinely exercise unquestioned command of the situation.’ ” 519 U.S. 6 ARIZONA v. JOHNSON Opinion of the Court 408, 414 (1997) (quoting Michigan v. Summers, 452 U.S. 692, 702–703 (1981)); see Three decisions cumulatively portray Terry’s application in a traffic-stop setting: Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam); (1997); and v. California, In Mimms, the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” n. 6. The government’s “legitimate and weighty” interest in officer safety, the Court said, outweighs the “de mini mis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle. at 110–111. Citing Terry as controlling, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver “might be armed and presently dangerous.” 434 U.S., at 112. Wilson held that the Mimms rule applied to passengers as well as to drivers. Specifically, the Court instructed that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” 519 U.S., “[T]he same weighty interest in officer safety,” the Court observed, “is present regardless of whether the occupant of the stopped car is a driver or passenger.” It is true, the Court acknowledged, that in a lawful traffic stop, “[t]here is probable cause to believe that the driver has committed a minor vehicular offense,” but “there is no such reason to stop or detain the passengers.” On the other hand, the Court emphasized, the risk of a violent encounter in a traffic-stop setting “stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a Cite as: 555 U. S. (2009) 7 Opinion of the Court more serious crime might be uncovered during the stop.” “[T]he motivation of a passenger to employ violence to prevent apprehension of such a crime,” the Court stated, “is every bit as great as that of the driver.” Moreover, the Court noted, “as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle,” –414, so “the additional intrusion on the passenger is minimal,” Completing the picture, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger therefore has stand ing to challenge a stop’s constitutionality. at 256–2. After Wilson, but before the Court had stated, in dictum, that officers who conduct “routine traffic stop[s]” may “perform a ‘patdown’ of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” 117–118 (1998). That forecast, we now confirm, accurately captures the combined thrust of the Court’s decisions in Mimms, Wilson, and B The Arizona Court of Appeals recognized that, initially, Johnson was lawfully detained incident to the legitimate stop of the vehicle in which he was a passenger. See 217 Ariz., 170 P.3d, 3. But, that court concluded, once Officer Trevizo undertook to question Johnson on a matter unrelated to the traffic stop, i.e., Johnson’s gang affiliation, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity. See P. 3d, 4. In support of the Arizona court’s portrayal of Trevizo’s interrogation of Johnson as “consensual,” Johnson emphasizes Trevizo’s testimony at the suppres sion hearing. Responding to the prosecutor’s questions, 8 ARIZONA v. JOHNSON Opinion of the Court Trevizo affirmed her belief that Johnson could have “re fused to get out of the car” and “to turn around for the pat down.” App. 41. It is not clear why the prosecutor, in opposing the sup pression motion, sought to portray the episode as consen sual. Cf. (holding that police officers’ search of a bus passenger’s luggage can be based on consent). In any event, Trevizo also testified that she never advised Johnson he did not have to answer her questions or otherwise cooperate with her. See App. 45. And during cross-examination, Trevizo did not dis agree when defense counsel asked “in fact you weren’t seeking [Johnson’s] permission ?” As the dissenting judge observed, “consensual” is an “unrealistic” characterization of the Trevizo-Johnson interaction. “[T]he encounter took place within minutes of the stop”; the patdown followed “within mere moments” of Johnson’s exit from the vehicle; beyond genuine debate, the point at which Johnson could have felt free to leave had not yet occurred. See 217 Ariz., 170 P.3d, at 5.1 A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Nor mally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See An officer’s inquiries into matters unrelated to the justifica tion for the traffic stop, this Court has made plain, do not —————— 1 The Court of Appeals majority did not assert that Johnson reasona bly could have felt free to leave. Instead, the court said “a reasonable person in Johnson’s position would have felt free to remain in the vehicle.” 3 That position, however, appears at odds with our decision in 519 U.S. 408 (1997). See at 6–7. Cite as: 555 U. S. (2009) 9 Opinion of the Court convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100–101 (2005). In sum, as stated in a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. See Nothing oc curred in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permis sion.” Officer Trevizo surely was not constitution ally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.2 * * * For the reasons stated, the judgment of the Arizona Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. —————— 2 The Arizona Court of Appeals assumed, “without deciding, that Trevizo had reasonable suspicion that Johnson was armed and danger ous.” 217 Ariz., 170 P.3d, 3. We do not foreclose the appeals court’s consideration of that issue on remand

Justice Souter

majority

Beach v. Ocwen Fed. Bank

1998-04-22

https://www.courtlistener.com/opinion/118197/beach-v-ocwen-fed-bank/

https://www.courtlistener.com/api/rest/v3/clusters/118197/

1997-054

Under the Truth in Lending Act, 82 Stat. 146, 15 U.S. C. § 1601 et seq., when a loan made in a consumer credit transaction is secured by the borrower's principal dwelling, the borrower may rescind the loan agreement if the lender fails to deliver certain forms or to disclose important terms accurately. See 15 U.S. C. § 1635. Under § 1635(f) of the statute, this right of rescission "shall expire" in the usual case three years after the loan closes or upon the sale of the secured property, whichever date is earlier. The question here is whether a borrower may assert this right to rescind as an affirmative defense in a collection action brought by the lender more than three years after the consummation *412 of the transaction. We answer no and hold that § 1635(f) completely extinguishes the right of rescission at the end of the 3-year period. I The declared purpose of the Act is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S. C. § 1601(a); see Mourning v. Family Publications Service, Inc., 411 U.S. 356, 363-368 (1973). Accordingly, the Act requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights. See §§ 1631, 1632, 1635, 1638. Failure to satisfy the Act subjects a lender to criminal penalties for noncompliance, see § 1611, as well as to statutory and actual damages traceable to a lender's failure to make the requisite disclosures, see § 1640. Section 1640(e) provides that an action for such damages "may be brought" within one year after a violation of the Act, but that a borrower may assert the right to damages "as a matter of defense by recoupment or set-off" in a collection action brought by the lender even after the one year is up. Going beyond these rights to damages, the Act also authorizes a borrower whose loan is secured with his "principal dwelling," and who has been denied the requisite disclosures, to rescind the loan transaction entirely "until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later." § 1635(a). A borrower who exercises this right to rescind "is not liable for any finance or other charge, and any security interest given by [him], including any such interest arising by operation of law, becomes void" upon rescission. § 1635(b). Within 20 days *413 after receiving notice of rescission, the lender must "return to the [borrower] any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction." Ibid. The Act provides, however, that the borrower's right of rescission "shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first," even if the required disclosures have never been made. § 1635(f).[1] The Act gives a borrower no express permission to assert the right of rescission as an affirmative defense after the expiration of the 3-year period. The borrowers in this case, petitioners David and Linda Beach, built a house in Jupiter, Florida, in 1986 with a secured $85,000 construction loan from Fidelity Federal Savings Bank of Florida. In the same year, the Beaches refinanced the house with a loan from Great Western Bank.[2] In 1991, the Beaches stopped making mortgage payments, and in 1992 the bank began this foreclosure proceeding. The Beaches acknowledged their default but raised affirmative defenses, alleging that the bank's failure to make disclosures required by the Act[3] gave them rights under §§ 1635 and *414 1640 to rescind the mortgage agreement and to reduce the bank's claim by the amount of their actual and statutory damages. The Circuit Court of the 15th Judicial Circuit of Florida agreed that under § 1640 the Beaches were entitled to "offset the amount owed to Great Western" by $396 in actual damages and $1,000 in statutory damages because the bank had overstated the monthly mortgage payment by $0.58 and the finance charge by $201.84. But the court rejected the Beaches' effort to rescind the mortgage under § 1635, holding that the loan at issue was immune to rescission as part of a "residential mortgage transaction" (defined in § 1602(w)) and, in the alternative, that any right to rescind had expired after three years, in 1989. The court found it telling that Congress had included no saving clause to revive an expired right of rescission as a defense in the nature of recoupment or setoff. The State's intermediate appellate court affirmed, Beach v. Great Western Bank, 670 So. 2d 986 (Fla. 4th Dist. Ct. App. 1996), and so did the Supreme Court of Florida, which addressed only the issue of rescission as a defense, Beach v. Great Western Bank, 692 So. 2d 146 (1997).[4] That court remarked on the plain language of § 1635(f) as evidence of unconditional congressional intent to limit the right of rescission to three years and explained that its prior cases permitting a defense of recoupment by an ostensibly barred claim were distinguishable because, among other things, they involved statutes of limitation, not statutes extinguishing rights defensively asserted. Because the reading of § 1635(f) given by the Supreme Court of Florida conflicts with the decisions of several other *415 courts,[5] we granted certiorari, 522 U.S. 912 (1997), to determine whether under federal law the statutory right of rescission provided by § 1635 may be revived as an affirmative defense after its expiration under § 1635(f). We affirm. II The Beaches concede that any right they may have had to institute an independent proceeding for rescission under § 1635 lapsed in 1989, three years after they closed the loan with the bank, but they argue that the restriction to three years in § 1635(f) is a statute of limitation governing only the institution of suit and accordingly has no effect when a borrower claims a § 1635 right of rescission as a "defense in recoupment" to a collection action. They are, of course, correct that as a general matter a defendant's right to plead "recoupment," a "`defense arising out of some feature of the transaction upon which the plaintiff's action is grounded,' " Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 299 (1946) (quoting Bull v. United States, 295 U.S. 247, 262 (1935)), survives the expiration of the period provided by a statute of limitation that would otherwise bar the recoupment claim as an independent cause of action. So long as the plaintiff's action is timely, see ibid., a defendant may raise a claim in recoupment even if he could no longer bring it independently, absent "`the clearest congressional language' " to the contrary. Reiter v. Cooper, 507 U.S. 258, 264 (1993) (quoting United States v. Western Pacific R. Co., 352 U.S. 59, 71 (1956)). As we have said before, the object of a statute of limitation in keeping "stale litigation out of the courts," id., at 72, would be distorted if the statute were *416 applied to bar an otherwise legitimate defense to a timely lawsuit, for limitation statutes "are aimed at lawsuits, not at the consideration of particular issues in lawsuits," ibid. The Beaches come up short, however, on the question whether this is a case for the general rule at all. The issue here is not whether limitation statutes affect recoupment rights, but whether § 1635(f) is a statute of limitation, that is, "whether [it] operates, with the lapse of time, to extinguish the right which is the foundation for the claim" or "merely to bar the remedy for its enforcement." Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 358— 359, and n. 4 (1943). The "ultimate question" is whether Congress intended that "the right shall be enforceable in any event after the prescribed time," id., at 360; accord, Burnett v. New York Central R. Co., 380 U.S. 424 (1965), and in this instance, the answer is apparent from the plain language of § 1635(f). See Good Samaritan Hospital v. Shalala, 508 U.S. 402, 409 (1993). The terms of a typical statute of limitation provide that a cause of action may or must be brought within a certain period of time. So, in Reiter v. Cooper, supra, at 263-264, we concluded that 49 U.S. C. § 11706(c)(2), providing that a shipper "`must begin a civil action to recover damages under [§ 11705(b)(3)] within two years after the claim accrues,' " was a statute of limitation raising no bar to a claim made in recoupment. See Note, Developments in the Law: Statutes of Limitations, 63 Harv. L. Rev. 1177, 1179 (1950) (most statutes of limitation provide either that "all actions . . . shall be brought within" or "no action . . . shall be brought more than" so many years after "the cause thereof accrued" (internal quotation marks omitted)); H. Wood, 1 Limitation of Actions § 1, pp. 2-3 (4th ed. 1916) ("[S]tatutes which provide that no action shall be brought, or right enforced, unless brought or enforced within a certain time, are . . . statutes of limitation"). *417 To be sure, a limitation provision may be held to be nothing more than a bar to bringing suit, even though its terms are ostensibly more ambitious than the language of the classic formulations cited above. Thus, for example, in Distribution Servs., Ltd. v. Eddie Parker Interests, Inc., 897 F.2d 811 (1990), the Fifth Circuit concluded that § 3(6) of the Carriage of Goods by Sea Act is a statute of limitation permitting counterclaim brought by way of recoupment, despite its fierce-sounding provision that "the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods," 46 U.S. C. App. § 1303(6). Section 1635(f), however, takes us beyond any question whether it limits more than the time for bringing a suit, by governing the life of the underlying right as well. The subsection says nothing in terms of bringing an action but instead provides that the "right of rescission [under the Act] shall expire" at the end of the time period. It talks not of a suit's commencement but of a right's duration, which it addresses in terms so straightforward as to render any limitation on the time for seeking a remedy superfluous. There is no reason, then, even to resort to the canons of construction that we use to resolve doubtful cases, such as the rule that the creation of a right in the same statute that provides a limitation is some evidence that the right was meant to be limited, not just the remedy. See Midstate Horticultural Co., supra, at 360; Burnett, supra, at 427, n. 2; Davis v. Mills, 194 U.S. 451, 454 (1904). The Act, however, has left even less to chance (if that is possible) than its "expire" provision would allow, standing alone. It is useful to look ahead to § 1640 with its provisions for recovery of damages. Subsection (e) reads that the 1-year limit on actions for damages "does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from *418 the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law." 15 U.S. C. § 1640(e). Thus the effect of the 1-year limitation provision on damages actions is expressly deflected from recoupment claims. The quite different treatment of rescission stands in stark contrast to this, however, there being no provision for rescission as a defense that would mitigate the uncompromising provision of § 1635(f) that the borrower's right "shall expire" with the running of the time. Indeed, when Congress amended the Act in 1995 to soften certain restrictions on rescission as a defense in § 8, 109 Stat. 275-276, 15 U.S. C. §§ 1635(i)(1) and (2) (1994 ed., Supp. I), it took care to provide that any such liberality was "subject to the [three year] time period provided in subsection (f)," ibid. , and it left a borrower's only hope for further recoupment in the slim promise of § 1635(i)(3), that "[n]othing in this subsection affects a consumer's right of rescission in recoupment under State law." § 8, 109 Stat. 276.[6] Thus, recoupment of damages and rescission in the nature of recoupment receive unmistakably different treatments, which under the normal rule of construction are understood to reflect a deliberate intent on the part of Congress. See Bates v. United States, 522 U.S. 23, 29-30 (1997) ("` "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion"` ") (quoting Russello v. United States, 464 U.S. 16, 23 (1983), in turn quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972)). And the distinction thus indicated makes perfectly good sense. Since a statutory right of rescission could cloud a bank's title on foreclosure, *419 Congress may well have chosen to circumscribe that risk, while permitting recoupment damages regardless of the date a collection action may be brought. See Board of Governors of Federal Reserve System, Annual Report to Congress on Truth in Lending for the Year 1971, p. 19 (Jan. 3, 1972); National Commission on Consumer Finance, Consumer Credit in the United States 189-190 (Dec. 1972). We respect Congress's manifest intent by concluding that the Act permits no federal right to rescind, defensively or otherwise, after the 3-year period of § 1635(f) has run. Accordingly, we affirm the judgment of the Supreme Court of Florida. It is so ordered.

Under the Truth in Lending Act, 15 U.S. C. 1601 et seq., when a loan made in a consumer credit transaction is secured by the borrower's principal dwelling, the borrower may rescind the loan agreement if the lender fails to deliver certain forms or to disclose important terms accurately. See 15 U.S. C. 1635. Under 1635(f) of the statute, this right of rescission "shall expire" in the usual case three years after the loan closes or upon the sale of the secured property, whichever date is earlier. The question here is whether a borrower may assert this right to rescind as an affirmative defense in a collection action brought by the lender more than three years after the consummation *412 of the transaction. We answer no and hold that 1635(f) completely extinguishes the right of rescission at the end of the 3-year period. I The declared purpose of the Act is "to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices." 15 U.S. C. 1601(a); see Accordingly, the Act requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights. See 1631, 1632, 1635, 1638. Failure to satisfy the Act subjects a lender to criminal penalties for noncompliance, see 1611, as well as to statutory and actual damages traceable to a lender's failure to make the requisite disclosures, see 1640. Section 1640(e) provides that an action for such damages "may be brought" within one year after a violation of the Act, but that a borrower may assert the right to damages "as a matter of defense by recoupment or set-off" in a collection action brought by the lender even after the one year is up. Going beyond these rights to damages, the Act also authorizes a borrower whose loan is secured with his "principal dwelling," and who has been denied the requisite disclosures, to rescind the loan transaction entirely "until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later." 1635(a). A borrower who exercises this right to rescind "is not liable for any finance or other charge, and any security interest given by [him], including any such interest arising by operation of law, becomes void" upon rescission. 1635(b). Within 20 days *413 after receiving notice of rescission, the lender must "return to the [borrower] any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction." The Act provides, however, that the borrower's right of rescission "shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first," even if the required disclosures have never been made. 1635(f).[1] The Act gives a borrower no express permission to assert the right of rescission as an affirmative defense after the expiration of the 3-year period. The borrowers in this case, petitioners David and Linda Beach, built a house in Jupiter, Florida, in 1986 with a secured $85,000 construction loan from Fidelity Federal Savings Bank of Florida. In the same year, the Beaches refinanced the house with a loan from Great Western Bank.[2] In 1991, the Beaches stopped making mortgage payments, and in 1992 the bank began this foreclosure proceeding. The Beaches acknowledged their default but raised affirmative defenses, alleging that the bank's failure to make disclosures required by the Act[3] gave them rights under 1635 and *414 1640 to rescind the mortgage agreement and to reduce the bank's claim by the amount of their actual and statutory damages. The Circuit Court of the 15th Judicial Circuit of Florida agreed that under 1640 the Beaches were entitled to "offset the amount owed to Great Western" by $396 in actual damages and $1,000 in statutory damages because the bank had overstated the monthly mortgage payment by $0.58 and the finance charge by $201.84. But the court rejected the Beaches' effort to rescind the mortgage under 1635, holding that the loan at issue was immune to rescission as part of a "residential mortgage transaction" (defined in 1602(w)) and, in the alternative, that any right to rescind had expired after three years, in 1989. The court found it telling that Congress had included no saving clause to revive an expired right of rescission as a defense in the nature of recoupment or setoff. The State's intermediate appellate court affirmed, and so did the Supreme Court of Florida, which addressed only the issue of rescission as a defense,[4] That court remarked on the plain language of 1635(f) as evidence of unconditional congressional intent to limit the right of rescission to three years and explained that its prior cases permitting a defense of recoupment by an ostensibly barred claim were distinguishable because, among other things, they involved statutes of limitation, not statutes extinguishing rights defensively asserted. Because the reading of 1635(f) given by the Supreme Court of Florida conflicts with the decisions of several other *415 courts,[5] we granted certiorari, to determine whether under federal law the statutory right of rescission provided by 1635 may be revived as an affirmative defense after its expiration under 1635(f). We affirm. II The Beaches concede that any right they may have had to institute an independent proceeding for rescission under 1635 lapsed in 1989, three years after they closed the loan with the bank, but they argue that the restriction to three years in 1635(f) is a statute of limitation governing only the institution of suit and accordingly has no effect when a borrower claims a 1635 right of rescission as a "defense in recoupment" to a collection action. They are, of course, correct that as a general matter a defendant's right to plead "recoupment," a "`defense arising out of some feature of the transaction upon which the plaintiff's action is grounded,' " survives the expiration of the period provided by a statute of limitation that would otherwise bar the recoupment claim as an independent cause of action. So long as the plaintiff's action is timely, see ib a defendant may raise a claim in recoupment even if he could no longer bring it independently, absent "`the clearest congressional language' " to the contrary. As we have said before, the object of a statute of limitation in keeping "stale litigation out of the courts," would be distorted if the statute were *416 applied to bar an otherwise legitimate defense to a timely lawsuit, for limitation statutes "are aimed at lawsuits, not at the consideration of particular issues in lawsuits," The Beaches come up short, however, on the question whether this is a case for the general rule at all. The issue here is not whether limitation statutes affect recoupment rights, but whether 1635(f) is a statute of limitation, that is, "whether [it] operates, with the lapse of time, to extinguish the right which is the foundation for the claim" or "merely to bar the remedy for its enforcement." Midstate Horticultural The "ultimate question" is whether Congress intended that "the right shall be enforceable in any event after the prescribed time," ; accord, and in this instance, the answer is apparent from the plain language of 1635(f). See Good Samaritan The terms of a typical statute of limitation provide that a cause of action may or must be brought within a certain period of time. So, in at 263-, we concluded that 49 U.S. C. 11706(c)(2), providing that a shipper "`must begin a civil action to recover damages under [ 11705(b)(3)] within two years after the claim accrues,' " was a statute of limitation raising no bar to a claim made in recoupment. See Note, Developments in the Law: Statutes of Limitations, ; H. Wood, 1 Limitation of Actions 1, pp. 2-3 (4th ed. 1916) ("[S]tatutes which provide that no action shall be brought, or right enforced, unless brought or enforced within a certain time, are statutes of limitation"). *417 To be sure, a limitation provision may be held to be nothing more than a bar to bringing suit, even though its terms are ostensibly more ambitious than the language of the classic formulations cited above. Thus, for example, in Distribution Servs., the Fifth Circuit concluded that 3(6) of the Carriage of Goods by Sea Act is a statute of limitation permitting counterclaim brought by way of recoupment, despite its fierce-sounding provision that "the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods," 46 U.S. C. App. 1303(6). Section 1635(f), however, takes us beyond any question whether it limits more than the time for bringing a suit, by governing the life of the underlying right as well. The subsection says nothing in terms of bringing an action but instead provides that the "right of rescission [under the Act] shall expire" at the end of the time period. It talks not of a suit's commencement but of a right's duration, which it addresses in terms so straightforward as to render any limitation on the time for seeking a remedy superfluous. There is no reason, then, even to resort to the canons of construction that we use to resolve doubtful cases, such as the rule that the creation of a right in the same statute that provides a limitation is some evidence that the right was meant to be limited, not just the remedy. See Midstate Horticultural ; ; The Act, however, has left even less to chance (if that is possible) than its "expire" provision would allow, standing alone. It is useful to look ahead to 1640 with its provisions for recovery of damages. Subsection (e) reads that the 1-year limit on actions for damages "does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from *418 the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law." 15 U.S. C. 1640(e). Thus the effect of the 1-year limitation provision on damages actions is expressly deflected from recoupment claims. The quite different treatment of rescission stands in stark contrast to this, however, there being no provision for rescission as a defense that would mitigate the uncompromising provision of 1635(f) that the borrower's right "shall expire" with the running of the time. Indeed, when Congress amended the Act in 1995 to soften certain restrictions on rescission as a defense in 8, -276, 15 U.S. C. 1635(i)(1) and (2) (1994 ed., Supp. I), it took care to provide that any such liberality was "subject to the [three year] time period provided in subsection (f)," and it left a borrower's only hope for further recoupment in the slim promise of 1635(i)(3), that "[n]othing in this subsection affects a consumer's right of rescission in recoupment under State law." 8,[6] Thus, recoupment of damages and rescission in the nature of recoupment receive unmistakably different treatments, which under the normal rule of construction are understood to reflect a deliberate intent on the part of Congress. See in turn quoting United ). And the distinction thus indicated makes perfectly good sense. Since a statutory right of rescission could cloud a bank's title on foreclosure, *419 Congress may well have chosen to circumscribe that risk, while permitting recoupment damages regardless of the date a collection action may be brought. See Board of Governors of Federal Reserve System, Annual Report to Congress on Truth in Lending for the Year 19, p. 19 ; National Commission on Consumer Finance, Consumer Credit in the United States 189-190 We respect Congress's manifest intent by concluding that the Act permits no federal right to rescind, defensively or otherwise, after the 3-year period of 1635(f) has run. Accordingly, we affirm the judgment of the Supreme Court of Florida. It is so ordered.

Justice Sotomayor

majority

Wellness Int'l Network, Ltd. v. Sharif

2015-05-26

https://www.courtlistener.com/opinion/2804677/wellness-intl-network-ltd-v-sharif/

https://www.courtlistener.com/api/rest/v3/clusters/2804677/

2014-038

Article III, §1, of the Constitution provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Con- gress may from time to time ordain and establish.” Con- gress has in turn established 94 District Courts and 13 Courts of Appeals, composed of judges who enjoy the protections of Article III: life tenure and pay that cannot be diminished. Because these protections help to ensure the integrity and independence of the Judiciary, “we have long recognized that, in general, Congress may not with- draw from” the Article III courts “any matter which, from its nature, is the subject of a suit at the common law, or in equity, or in admiralty.” Stern v. Marshall, 564 U. S. ___, ___ (2011) (slip op., at 18) (internal quotation marks omitted). Congress has also authorized the appointment of bank- ruptcy and magistrate judges, who do not enjoy the protec- tions of Article III, to assist Article III courts in their work. The number of magistrate and bankruptcy judge- ships exceeds the number of circuit and district judge- 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court ships.1 And it is no exaggeration to say that without the distinguished service of these judicial colleagues, the work of the federal court system would grind nearly to a halt.2 Congress’ efforts to align the responsibilities of non- Article III judges with the boundaries set by the Constitu- tion have not always been successful. In Northern Pipe- line Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (plurality opinion), and more recently in Stern, this Court held that Congress violated Article III by authoriz- ing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. This case presents the question whether Article III allows bankruptcy judges to adjudicate such claims with the parties’ consent. We hold that Article III is not violated when the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge. I A Before 1978, district courts typically delegated bank- ruptcy proceedings to “referees.” Executive Benefits Ins. —————— 1 Congress has authorized 179 circuit judgeships and 677 district judgeships, a total of 856. United States Courts, Status of Article III Judgeships, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/ status-article-iii-judgeships.aspx (all Internet materials as visited May 22, 2015, and available in Clerk of Court’s case file). The number of authorized magistrate and bankruptcy judgeships currently stands at 883: 534 full-time magistrate judgeships and 349 bankruptcy judgeships. United States Courts, Appointments of Magistrate Judges, http://www.uscourts.gov/Statistics/JudicialBusiness/ 2014/appointments-magistrate-judges.aspx; United States Courts, Status of Bankruptcy Judgeships, http://www.uscourts.gov/Statistics/ JudicialBusiness/2014/status-bankruptcy-judgeships.aspx. 2 Between October 1, 2013, and September 30, 2014, for example, litigants filed 963,739 cases in bankruptcy courts—more than double the total number filed in district and circuit courts. United States Courts, Judicial Caseload Indicators, http://www.uscourts.gov/ Statistics/JudicialBusiness/2014/judicial-caseload-indicators.aspx. Cite as: 575 U. S. ____ (2015) 3 Opinion of the Court Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 4). Under the Bankruptcy Act of 1898, bankruptcy referees had “[s]ummary jurisdiction” over “claims involving ‘prop- erty in the actual or constructive possession of the bank- ruptcy court’ ”—that is, over the apportionment of the bankruptcy estate among creditors. Ibid. (alteration omitted). They could preside over other proceedings— matters implicating the court’s “plenary jurisdiction”—by consent. Id., at ___ (slip op., at 5); see also MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 266–267 (1932). In 1978, Congress enacted the Bankruptcy Reform Act, which repealed the 1898 Act and gave the newly created bankruptcy courts power “much broader than that exer- cised under the former referee system.” Northern Pipe- line, 458 U.S., at 54. The Act “[e]liminat[ed] the distinc- tion between ‘summary’ and ‘plenary’ jurisdiction” and enabled bankruptcy courts to decide “all ‘civil proceedings arising under title 11 [the Bankruptcy title] or arising in or related to cases under title 11.’ ” Ibid. (emphasis de- leted). Congress thus vested bankruptcy judges with most of the “‘powers of a court of equity, law, and admiralty,’” id., at 55, without affording them the benefits of Article III. This Court therefore held parts of the system unconstitu- tional in Northern Pipeline. Congress responded by enacting the Bankruptcy Amendments and Federal Judgeship Act of 1984. Under that Act, district courts have original jurisdiction over bankruptcy cases and related proceedings. 28 U.S. C. §§1334(a), (b). But “[e]ach district court may provide that any or all” bankruptcy cases and related proceedings “shall be referred to the bankruptcy judges for the dis- trict.” §157(a). Bankruptcy judges are “judicial officers of the United States district court,” appointed to 14-year terms by the courts of appeals, and subject to removal for cause. §§152(a)(1), (e). “The district court may withdraw” 4 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court a reference to the bankruptcy court “on its own motion or on timely motion of any party, for cause shown.” §157(d). When a district court refers a case to a bankruptcy judge, that judge’s statutory authority depends on whether Congress has classified the matter as a “[c]ore proceed- in[g]” or a “[n]on-core proceedin[g],” §§157(b)(2), (4)—much as the authority of bankruptcy referees, before the 1978 Act, depended on whether the proceeding was “summary” or “plenary.” Congress identified as “[c]ore” a nonexclu- sive list of 16 types of proceedings, §157(b)(2), in which it thought bankruptcy courts could constitutionally enter judgment.3 Congress gave bankruptcy courts the power to “hear and determine” core proceedings and to “enter ap- propriate orders and judgments,” subject to appellate review by the district court. §157(b)(1); see §158. But it gave bankruptcy courts more limited author-ity in non- core proceedings: They may “hear and determine” such proceedings, and “enter appropriate orders and judg- ments,” only “with the consent of all the parties to the proceeding.” §157(c)(2). Absent consent, bankruptcy courts in non-core proceedings may only “submit proposed findings of fact and conclusions of law,” which the district courts review de novo. §157(c)(1). B Petitioner Wellness International Network is a manu- facturer of health and nutrition products.4 Wellness and respondent Sharif entered into a contract under which Sharif would distribute Wellness’ products. The relation- ship quickly soured, and in 2005, Sharif sued Wellness in —————— 3 Congress appears to have drawn the term “core” from Northern Pipeline’s description of “the restructuring of debtor-creditor relations” as “the core of the federal bankruptcy power.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S., 50, 71 (1982). 4 Individual petitioners Ralph and Cathy Oats are Wellness’ founders. This opinion refers to all petitioners collectively as “Wellness.” Cite as: 575 U. S. ____ (2015) 5 Opinion of the Court the United States District Court for the Northern District of Texas. Sharif repeatedly ignored Wellness’ discovery requests and other litigation obligations, resulting in an entry of default judgment for Wellness. The District Court eventually sanctioned Sharif by awarding Wellness over $650,000 in attorney’s fees. This case arises from Well- ness’ long-running—and so far unsuccessful—efforts to collect on that judgment. In February 2009, Sharif filed for Chapter 7 bankruptcy in the Northern District of Illinois. The bankruptcy peti- tion listed Wellness as a creditor. Wellness requested documents concerning Sharif ’s assets, which Sharif did not provide. Wellness later obtained a loan application Sharif had filed in 2002, listing more than $5 million in assets. When confronted, Sharif informed Wellness and the Chapter 7 trustee that he had lied on the loan applica- tion. The listed assets, Sharif claimed, were actually owned by the Soad Wattar Living Trust (Trust), an entity Sharif said he administered on behalf of his mother, and for the benefit of his sister. Wellness pressed Sharif for information on the Trust, but Sharif again failed to respond. Wellness filed a five-count adversary complaint against Sharif in the Bankruptcy Court. See App. 5–22. Counts I–IV of the complaint objected to the discharge of Sharif ’s debts because, among other reasons, Sharif had concealed property by claiming that it was owned by the Trust. Count V of the complaint sought a declaratory judgment that the Trust was Sharif ’s alter ego and that its assets should therefore be treated as part of Sharif ’s bankruptcy estate. Id., at 21. In his answer, Sharif admitted that the adversary proceeding was a “core proceeding” under 28 U.S. C. §157(b)—i.e., a proceeding in which the Bankruptcy Court could enter final judgment subject to appeal. See §§157(b)(1), (2)(J); App. 24. Indeed, Sharif requested judgment in his favor on all counts of Wellness’ complaint 6 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court and urged the Bankruptcy Court to “find that the Soad Wattar Living Trust is not property of the [bankruptcy] estate.” Id., at 44. A familiar pattern of discovery evasion ensued. Well- ness responded by filing a motion for sanctions, or, in the alternative, to compel discovery. Granting the motion to compel, the Bankruptcy Court warned Sharif that if he did not respond to Wellness’ discovery requests a default judgment would be entered against him. Sharif eventu- ally complied with some discovery obligations, but did not produce any documents related to the Trust. In July 2010, the Bankruptcy Court issued a ruling finding that Sharif had violated the court’s discovery order. See App. to Pet. for Cert. 92a–120a. It accordingly denied Sharif ’s request to discharge his debts and entered a default judgment against him in the adversary proceed- ing. And it declared, as requested by count V of Wellness’ complaint, that the assets supposedly held by the Trust were in fact property of Sharif ’s bankruptcy estate be- cause Sharif “treats [the Trust’s] assets as his own prop- erty.” Id., at 119a. Sharif appealed to the District Court. Six weeks before Sharif filed his opening brief in the District Court, this Court decided Stern. In Stern, the Court held that Article III prevents bankruptcy courts from entering final judg- ment on claims that seek only to “augment” the bankruptcy estate and would otherwise “exis[t] without regard to any bankruptcy proceeding.” 564 U. S., at ___, ___ (slip op., at 27, 34). Sharif did not cite Stern in his opening brief. Rather, after the close of briefing, Sharif moved for leave to file a supplemental brief, arguing that in light of In re Ortiz, 665 F.3d 906 (CA7 2011)—a recently issued decision interpreting Stern—“the bankruptcy court’s order should only be treated as a report and recommendation.” App. 145. The District Court denied Sharif's motion for supplemental briefing as untimely and affirmed the Bank- Cite as: 575 U. S. ____ (2015) 7 Opinion of the Court ruptcy Court’s judgment. The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. 727 F.3d 751 (2013). The Seventh Circuit acknowledged that ordinarily Sharif ’s Stern objection would “not [be] preserved because he waited too long to assert it.” 727 F.3d, at 767.5 But the court determined that the ordinary rule did not apply because Sharif ’s argument concerned “the allocation of authority between bankruptcy courts and district courts” under Article III, and thus “implicate[d] structural inter- ests.” Id., at 771. Based on those separation-of-powers considerations, the court held that “a litigant may not waive” a Stern objection. Id., at 773. Turning to the merits of Sharif ’s contentions, the Seventh Circuit agreed with the Bankruptcy Court’s resolution of counts I–IV of Wellness’ adversary complaint. It further concluded, however, that count V of the complaint alleged a so-called “Stern claim,” that is, “a claim designated for final adjudi- cation in the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a constitutional matter.” Executive Benefits, 573 U. S., at ___ (slip op., at 4). The Seventh Circuit therefore ruled that the Bank- ruptcy Court lacked constitutional authority to enter final judgment on count V.6 —————— 5 Although the Seventh Circuit referred to Sharif’s failure to raise his Stern argument in a timely manner as a waiver, that court has since clarified that its decision rested on forfeiture. See Peterson v. Somers Dublin Ltd., 729 F.3d 741, 747 (2013) (“The issue in Wellness Interna- tional Network was forfeiture rather than waiver”). 6 The Seventh Circuit concluded its opinion by considering the rem- edy for the Bankruptcy Court’s purportedly unconstitutional issuance of a final judgment. The court determined that if count V of Wellness’ complaint raised a core claim, the only statutorily authorized remedy would be for the District Court to withdraw the reference to the Bank- ruptcy Court and set a new discovery schedule. The Seventh Circuit’s reasoning on this point was rejected by our decision last Term in Executive Benefits, which held that district courts may treat Stern 8 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court We granted certiorari, 573 U. S. ___ (2014), and now reverse the judgment of the Seventh Circuit.7 II Our precedents make clear that litigants may validly consent to adjudication by bankruptcy courts. A Adjudication by consent is nothing new. Indeed, “[d]uring the early years of the Republic, federal courts, with the consent of the litigants, regularly referred adjudi- cation of entire disputes to non-Article III referees, mas- ters, or arbitrators, for entry of final judgment in accord- ance with the referee’s report.” Brubaker, The Constitutionality of Litigant Consent to Non-Article III Bankruptcy Adjudications, 32 Bkrtcy. L. Letter No. 12, p. 6 (Dec. 2012); see, e.g., Thornton v. Carson, 7 Cranch 596, 597 (1813) (affirming damages awards in two actions that “were referred, by consent under a rule of Court to arbitra- tors”); Heckers v. Fowler, 2 Wall. 123, 131 (1865) (observ- ing that the “[p]ractice of referring pending actions under a rule of court, by consent of parties, was well known at common law,” and “is now universally regarded . . . as the proper foundation of judgment”); Newcomb v. Wood, 97 U.S. 581, 583 (1878) (recognizing “[t]he power of a court of justice, with the consent of the parties, to appoint arbitra- tors and refer a case pending before it”). The foundational case in the modern era is Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). —————— claims like non-core claims and thus are not required to restart pro- ceedings entirely when a bankruptcy court improperly enters final judgment. 7 Because the Court concludes that the Bankruptcy Court could val- idly enter judgment on Wellness’ claim with the parties’ consent, this opinion does not address, and expresses no view on, Wellness’ alterna- tive contention that the Seventh Circuit erred in concluding the claim in count V of its complaint was a Stern claim. Cite as: 575 U. S. ____ (2015) 9 Opinion of the Court The Commodity Futures Trading Commission (CFTC), which Congress had authorized to hear customer com- plaints against commodities brokers, issued a regulation allowing itself to hear state-law counterclaims as well. William Schor filed a complaint with the CFTC against his broker, and the broker, which had previously filed claims against Schor in federal court, refiled them as counter- claims in the CFTC proceeding. The CFTC ruled against Schor on the counterclaims. This Court upheld that ruling against both statutory and constitutional challenges. On the constitutional question (the one relevant here) the Court began by holding that Schor had “waived any right he may have possessed to the full trial of [the bro- ker’s] counterclaim before an Article III court.” Id., at 849. The Court then explained why this waiver legitimated the CFTC’s exercise of authority: “[A]s a personal right, Arti- cle III’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other per- sonal constitutional rights”—such as the right to a jury— “that dictate the procedures by which civil and criminal matters must be tried.” Id., at 848–849. The Court went on to state that a litigant’s waiver of his “personal right” to an Article III court is not always dis- positive because Article III “not only preserves to litigants their interest in an impartial and independent federal adjudication of claims . . . , but also serves as ‘an insepa- rable element of the constitutional system of checks and balances.’ . . . To the extent that this structural principle is implicated in a given case”—but only to that extent— “the parties cannot by consent cure the constitutional difficulty . . . .” Id., at 850–851. Leaning heavily on the importance of Schor’s consent, the Court found no structural concern implicated by the CFTC’s adjudication of the counterclaims against him. While “Congress gave the CFTC the authority to adjudi- cate such matters,” the Court wrote, 10 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court “the decision to invoke this forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction of these matters is unaffected. In such circumstances, separation of powers concerns are di- minished, for it seems self-evident that just as Con- gress may encourage parties to settle a dispute out of court or resort to arbitration without impermissible incursions on the separation of powers, Congress may make available a quasi-judicial mechanism through which willing parties may, at their option, elect to re- solve their differences.” Id., at 855. The option for parties to submit their disputes to a non- Article III adjudicator was at most a “de minimis” in- fringement on the prerogative of the federal courts. Id., at 856. A few years after Schor, the Court decided a pair of cases—Gomez v. United States, 490 U.S. 858 (1989), and Peretz v. United States, 501 U.S. 923 (1991)—that reiter- ated the importance of consent to the constitutional analy- sis. Both cases concerned whether the Federal Magis- trates Act authorized magistrate judges to preside over jury selection in a felony trial;8 the difference was that Peretz consented to the practice while Gomez did not. That difference was dispositive. In Gomez, the Court interpreted the statute as not allowing magistrate judges to supervise voir dire without consent, emphasizing the constitutional concerns that might otherwise arise. See 490 U.S., at 864. In Peretz, the Court upheld the Magistrate Judge’s action, stating that “the defendant’s consent significantly changes the constitutional analysis.” 501 U.S., at 932. The Court —————— 8 Inrelevant part, the Act provides that district courts may assign magistrate judges certain enumerated duties as well as “such additional duties as are not inconsistent with the Constitution and the laws of the United States.” 28 U.S. C. §636(b)(3). Cite as: 575 U. S. ____ (2015) 11 Opinion of the Court concluded that allowing a magistrate judge to supervise jury selection—with consent—does not violate Article III, explaining that “litigants may waive their personal right to have an Article III judge preside over a civil trial,” id., at 936 (citing Schor, 478 U.S., at 848), and that “[t]he most basic rights of criminal defendants are similarly subject to waiver,” 501 U.S., at 936. And “[e]ven assum- ing that a litigant may not waive structural protections provided by Article III,” the Court found “no such struc- tural protections . . . implicated by” a magistrate judge’s supervision of voir dire: “Magistrates are appointed and subject to removal by Article III judges. The ‘ultimate decision’ whether to invoke the magistrate’s assistance is made by the dis- trict court, subject to veto by the parties. The decision whether to empanel the jury whose selection a magis- trate has supervised also remains entirely with the district court. Because ‘the entire process takes place under the district court’s total control and jurisdic- tion,’ there is no danger that use of the magistrate in- volves a ‘congressional attemp[t] “to transfer jurisdic- tion [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” Id., at 937 (ci- tations omitted; alteration in original).9 The lesson of Schor, Peretz, and the history that preced- ed them is plain: The entitlement to an Article III adjudi- cator is “a personal right” and thus ordinarily “subject to —————— 9 Discounting the relevance of Gomez and Peretz, the principal dissent emphasizes that neither case concerned the entry of final judgment by a non-Article III actor. See post, at 16 (opinion of ROBERTS, C. J.). Here again, the principal dissent’s insistence on formalism leads it astray. As we explained in Peretz, the “responsibility and importance [of] presiding over voir dire at a felony trial” is equivalent to the “supervi- sion of entire civil and misdemeanor trials,” 501 U.S., at 933, tasks in which magistrate judges may “order the entry of judgment” with the parties’ consent, §636(c)(1). 12 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court waiver,” Schor, 478 U.S., at 848. Article III also serves a structural purpose, “barring congressional attempts ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and thereby prevent[ing] ‘the encroachment or aggrandizement of one branch at the expense of the other.’ ” Id., at 850 (citations omitted). But allowing Article I adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process. B The question here, then, is whether allowing bankruptcy courts to decide Stern claims by consent would “imper- missibly threate[n] the institutional integrity of the Judi- cial Branch.” Schor, 478 U.S., at 851. And that question must be decided not by “formalistic and unbending rules,” but “with an eye to the practical effect that the” practice “will have on the constitutionally assigned role of the federal judiciary.” Ibid.; see Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 587 (1985) (“[P]ractical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III”). The Court must weigh “the extent to which the essential attributes of judicial power are reserved to Article III courts, and, con- versely, the extent to which the non-Article III forum exer- cises the range of jurisdiction and powers normally vested only in Article III courts, the origins and im- portance of the right to be adjudicated, and the con- cerns that drove Congress to depart from the re- quirements of Article III.” Schor, 478 U.S., at 851 (internal quotation marks omitted). Applying these factors, we conclude that allowing bank- ruptcy litigants to waive the right to Article III adjudica- Cite as: 575 U. S. ____ (2015) 13 Opinion of the Court tion of Stern claims does not usurp the constitutional prerogatives of Article III courts. Bankruptcy judges, like magistrate judges, “are appointed and subject to removal by Article III judges,” Peretz, 501 U.S., at 937; see 28 U.S. C. §§152(a)(1), (e). They “serve as judicial officers of the United States district court,” §151, and collectively “constitute a unit of the district court” for that district, §152(a)(1). Just as “[t]he ‘ultimate decision’ whether to invoke [a] magistrate [judge]’s assistance is made by the district court,” Peretz, 501 U.S., at 937, bankruptcy courts hear matters solely on a district court’s reference, §157(a), which the district court may withdraw sua sponte or at the request of a party, §157(d). “[S]eparation of powers con- cerns are diminished” when, as here, “the decision to invoke [a non-Article III] forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction” remains in place. Schor, 478 U.S., at 855. Furthermore, like the CFTC in Schor, bankruptcy courts possess no free-floating authority to decide claims traditionally heard by Article III courts. Their ability to resolve such matters is limited to “a narrow class of com- mon law claims as an incident to the [bankruptcy courts’] primary, and unchallenged, adjudicative function.” Id., at 854. “In such circumstances, the magnitude of any intru- sion on the Judicial Branch can only be termed de mini- mis.” Id., at 856. Finally, there is no indication that Congress gave bank- ruptcy courts the ability to decide Stern claims in an effort to aggrandize itself or humble the Judiciary. As in Peretz, “[b]ecause ‘the entire process takes place under the district court’s total control and jurisdiction,’ there is no danger that use of the [bankruptcy court] involves a ‘congres- sional attemp[t] “to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” 501 U.S., at 937 (citation omitted); see also Schor, 478 U.S., at 855 (allowing CFTC’s adjudication of 14 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court counterclaims because of “the degree of judicial control saved to the federal courts, as well as the congressional purpose behind the jurisdictional delegation, the demon- strated need for the delegation, and the limited nature of the delegation” (citation omitted)); Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (CA9 1984) (en banc) (Kennedy, J.) (magistrate judges may adjudicate civil cases by consent because the Federal Magistrates Act “invests the Article III judiciary with extensive administrative control over the management, composition, and operation of the magistrate system”).10 Congress could choose to rest the full share of the Judi- ciary’s labor on the shoulders of Article III judges. But doing so would require a substantial increase in the num- ber of district judgeships. Instead, Congress has supple- mented the capacity of district courts through the able —————— 10 The principal dissent accuses us of making Sharif’s consent “ ‘dis- positive’ in curing [a] structural separation of powers violation,” con- trary to the holding of Schor. Post, at 16. That argument misapprehends both Schor and the nature of our analysis. What Schor forbids is using consent to excuse an actual violation of Article III. See 478 U.S., at 850–851 (“To the extent that th[e] structural principle [protected by Article III] is implicated in a given case, the parties cannot by consent cure the constitutional difficulty . . .” (emphasis added)). But Schor confirms that consent remains highly relevant when determining, as we do here, whether a particular adjudication in fact raises constitutional concerns. See id., at 855 (“separation of powers concerns are dimin- ished” when “the decision to invoke [a non-Article III] forum is left entirely to the parties”). Thus, we do not rely on Sharif’s consent to “cur[e]” a violation of Article III. His consent shows, in part, why no such violation has occurred. Cf. Meltzer, Legislative Courts, Legisla- tive Power, and the Constitution, 65 Ind. L. J. 291, 303 (1990) (“[C]onsent provides, if not complete, at least very considerable reason to doubt that the tribunal poses a serious threat to the ideal of federal adjudicatory independence”); Fallon, Of Legislative Courts, Adminis- trative Agencies, and Article III, 101 Harv. L. Rev. 915, 992 (1988) (when the parties consent, “there is substantial assurance that the agency is not generally behaving arbitrarily or otherwise offending separation-of-powers values. Judicial integrity is not at risk”). Cite as: 575 U. S. ____ (2015) 15 Opinion of the Court assistance of bankruptcy judges. So long as those judges are subject to control by the Article III courts, their work poses no threat to the separation of powers. C Our recent decision in Stern, on which Sharif and the principal dissent rely heavily, does not compel a different result. That is because Stern—like its predecessor, North- ern Pipeline—turned on the fact that the litigant “did not truly consent to” resolution of the claim against it in a non-Article III forum. 564 U. S., at ___ (slip op., at 27). To understand Stern, it is necessary to first understand Northern Pipeline. There, the Court considered whether bankruptcy judges “could ‘constitutionally be vested with jurisdiction to decide [a] state-law contract claim’ against an entity that was not otherwise part of the bankruptcy proceedings.” 564 U. S., at ___ (slip op., at 19). In answer- ing that question in the negative, both the plurality and then-Justice Rehnquist, concurring in the judgment, noted that the entity in question did not consent to the bank- ruptcy court’s adjudication of the claim. See 458 U.S., at 80, n. 31 (plurality opinion); id., at 91 (opinion of Rehnquist, J.). The Court confirmed in two later cases that Northern Pipeline turned on the lack of consent. See Schor, 478 U.S., at 849 (“[I]n Northern Pipeline, . . . the absence of consent to an initial adjudication before a non- Article III tribunal was relied on as a significant factor in determining that Article III forbade such adjudication”); Thomas, 473 U.S., at 584. Stern presented the same scenario. The majority cited the dissent’s observation that Northern Pipeline “estab- lish[ed] only that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review,” 564 U. S., 16 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court at ___ (slip op., at 28–29) (emphasis added; internal quota- tion marks omitted). To which the majority responded, “Just so: Substitute ‘tort’ for ‘contract,’ and that statement directly covers this case.” Id., at ___ (slip op., at 29); see also id., at ___ (slip op., at 27) (defendant litigated in the Bankruptcy Court because he “had nowhere else to go” to pursue his claim). Because Stern was premised on non- consent to adjudication by the Bankruptcy Court, the “constitutional bar” it announced, see post, at 14 (ROBERTS, C. J., dissenting), simply does not govern the question whether litigants may validly consent to adjudi- cation by a bankruptcy court. An expansive reading of Stern, moreover, would be inconsistent with the opinion’s own description of its holding. The Court in Stern took pains to note that the question before it was “a ‘narrow’ one,” and that its answer did “not change all that much” about the division of labor between district courts and bankruptcy courts. Id., at ___ (slip op., at 37); see also id., at ___ (slip op., at 38) (stating that Congress had exceeded the limitations of Article III “in one isolated respect”). That could not have been a fair characterization of the decision if it meant that bank- ruptcy judges could no longer exercise their longstanding authority to resolve claims submitted to them by consent. Interpreting Stern to bar consensual adjudications by bankruptcy courts would “meaningfully chang[e] the division of labor” in our judicial system, contra, id., at ___ (slip op., at 37).11 —————— 11 Inadvancing its restrictive view of Stern, the principal dissent ignores the sweeping jurisprudential implications of its position. If, as the principal dissent suggests, consent is irrelevant to the Article III analysis, it is difficult to see how Schor and Peretz were not wrongly decided. But those decisions obviously remain good law. It is the principal dissent’s position that breaks with our precedents. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 231 (1995) (“[T]he proposition that legal defenses based upon doctrines central to the courts’ struc- Cite as: 575 U. S. ____ (2015) 17 Opinion of the Court In sum, the cases in which this Court has found a viola- tion of a litigant’s right to an Article III decisionmaker have involved an objecting defendant forced to litigate involuntarily before a non-Article III court. The Court has never done what Sharif and the principal dissent would have us do—hold that a litigant who has the right to an Article III court may not waive that right through his consent. D The principal dissent warns darkly of the consequences of today’s decision. See post, at 17–20. To hear the princi- pal dissent tell it, the world will end not in fire, or ice, but in a bankruptcy court. The response to these ominous predictions is the same now as it was when Justice Bren- nan, dissenting in Schor, first made them nearly 30 years ago: “This is not to say, of course, that if Congress created a phalanx of non-Article III tribunals equipped to handle the entire business of the Article III courts without any Article III supervision or control and without evidence of valid and specific legislative ne- cessities, the fact that the parties had the election to proceed in their forum of choice would necessarily save the scheme from constitutional attack. But this case obviously bears no resemblance to such a sce- nario . . . .” 478 U.S., at 855 (citations omitted). Adjudication based on litigant consent has been a con- sistent feature of the federal court system since its incep- tion. Reaffirming that unremarkable fact, we are confi- dent, poses no great threat to anyone’s birthrights, constitutional or otherwise. —————— tural independence can never be waived simply does not accord with our cases”). 18 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court III Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such con- sent must be express. We disagree. Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express. Nor does the relevant statute, 28 U.S. C. §157, mandate express consent; it states only that a bankruptcy court must obtain “the consent”—consent simpliciter—“of all parties to the proceeding” before hearing and determining a non-core claim. §157(c)(2). And a requirement of express consent would be in great tension with our decision in Roell v. Withrow, 538 U.S. 580 (2003). That case concerned the interpretation of §636(c), which authorizes magistrate judges to “conduct any or all proceedings in a jury or non- jury civil matter and order the entry of judgment in the case,” with “the consent of the parties.”12 The specific question in Roell was whether, as a statutory matter, the “consent” required by §636(c) had to be express. The dissent argued that “[r]eading §636(c)(1) to require ex- press consent not only is more consistent with the text of —————— 12 Consistent with our precedents, the Courts of Appeals have unani- mously upheld the constitutionality of §636(c). See Sinclair v. Wain- wright, 814 F.2d 1516, 1519 (CA11 1987); Bell & Beckwith v. United States, 766 F.2d 910, 912 (CA6 1985); Gairola v. Virginia Dept. of Gen. Servs., 753 F.2d 1281, 1285 (CA4 1985); D. L. Auld Co. v. Chroma Graphics Corp., 753 F.2d 1029, 1032 (CA Fed. 1985); United States v. Dobey, 751 F.2d 1140, 1143 (CA10 1985); Fields v. Washington Metro- politan Area Transit Auth., 743 F.2d 890, 893 (CADC 1984); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1045 (CA7 1984); Lehman Bros. Kuhn Loeb Inc. v. Clark Oil & Refining Corp., 739 F.2d 1313, 1316 (CA8 1984) (en banc); Puryear v. Ede’s Ltd., 731 F.2d 1153, 1154 (CA5 1984); Goldstein v. Kelleher, 728 F.2d 32, 36 (CA1 1984); Collins v. Foreman, 729 F.2d 108, 115–116 (CA2 1984); Pacemaker Diagnostic Clinic, Inc. v. Instromedix, Inc., 725 F.2d 537, 540 (CA9 1984) (en banc) (Kennedy, J.); Wharton-Thomas v. United States, 721 F. 2d 922, 929–930 (CA3 1983). Cite as: 575 U. S. ____ (2015) 19 Opinion of the Court the statute, but also” avoids constitutional concerns by “ensur[ing] that the parties knowingly and voluntarily waive their right to an Article III judge.” 538 U.S., at 595 (opinion of THOMAS, J.). But the majority—thus placed on notice of the constitutional concern—was untroubled by it, opining that “the Article III right is substantially honored” by permitting waiver based on “actions rather than words.” Id., at 589, 590. The implied consent standard articulated in Roell sup- plies the appropriate rule for adjudications by bankruptcy courts under §157. Applied in the bankruptcy context, that standard possesses the same pragmatic virtues— increasing judicial efficiency and checking gamesman- ship—that motivated our adoption of it for consent-based adjudications by magistrate judges. See id., at 590. It bears emphasizing, however, that a litigant’s consent— whether express or implied—must still be knowing and voluntary. Roell makes clear that the key inquiry is whether “the litigant or counsel was made aware of the need for consent and the right to refuse it, and still volun- tarily appeared to try the case” before the non-Article III adjudicator. Ibid.; see also id., at 588, n. 5 (“notification of the right to refuse” adjudication by a non-Article III court “is a prerequisite to any inference of consent”).13 —————— 13 Even though the Constitution does not require that consent be express, it is good practice for courts to seek express statements of consent or nonconsent, both to ensure irrefutably that any waiver of the right to Article III adjudication is knowing and voluntary and to limit subsequent litigation over the consent issue. Statutes or judicial rules may require express consent where the Constitution does not. Indeed, the Federal Rules of Bankruptcy Procedure already require that pleadings in adversary proceedings before a bankruptcy court “contain a statement that the proceeding is core or non-core and, if non-core, that the pleader does or does not consent to entry of final orders or judgment by the bankruptcy judge.” Fed. Rule Bkrtcy. Proc. 7008 (opening pleadings); see Fed. Rule Bkrtcy. Proc. 7012 (responsive pleadings). The Bankruptcy Court and the parties followed that 20 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court IV It would be possible to resolve this case by determining whether Sharif in fact consented to the Bankruptcy Court’s adjudication of count V of Wellness’ adversary complaint. But reaching that determination would re- quire a deeply factbound analysis of the procedural history unique to this protracted litigation. Our resolution of the consent question—unlike the antecedent constitutional question—would provide little guidance to litigants or the lower courts. Thus, consistent with our role as “a court of review, not of first view,” Nautilus, Inc. v. Biosig Instru- ments, Inc., 572 U. S. ___, ___ (2014) (slip op., at 14) (in- ternal quotation marks omitted), we leave it to the Sev- enth Circuit to decide on remand whether Sharif ’s actions evinced the requisite knowing and voluntary consent, and also whether, as Wellness contends, Sharif forfeited his Stern argument below. * * * The Court holds that Article III permits bankruptcy courts to decide Stern claims submitted to them by con- sent. The judgment of the United States Court of Appeals for the Seventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— procedure in this case. See App. 6, 24; supra, at 5–6. Cite as: 575 U. S. ____ (2015) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES _________________ No. 13–935 _________________ WELLNESS INTERNATIONAL NETWORK, LIMITED, ET AL, PETITIONERS v. RICHARD SHARIF ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [May 26, 2015] JUSTICE ALITO, concurring in part and concurring in the judgment. I join the opinion of the Court insofar as it holds that a bankruptcy judge’s resolution of a “Stern claim”* with the consent of the parties does not violate Article III of the Constitution. The Court faithfully applies Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). No one believes that an arbitrator exercises “[t]he judicial Power of the United States,” Art. III, §1, in an ordinary, run-of-the mill arbitration. And whatever differences there may be between an arbitrator’s “decision” and a bankruptcy court’s “judgment,” those differences would seem to fall within the Court’s previous rejection of “for- malistic and unbending rules.” Schor, supra, at 851. Whatever one thinks of Schor, it is still the law of this Court, and the parties do not ask us to revisit it. Unlike the Court, however, I would not decide whether consent may be implied. While the Bankruptcy Act just speaks of “consent,” 28 U.S. C. §157(c)(2), the Federal Rules of Bankruptcy Procedure provide that “[i]n non-core proceedings final orders and judgments shall not be en- —————— * See Stern v. Marshall, 564 U. S. ___ (2011). A “Stern claim” is a claim that is “core” under the statute but yet “prohibited from proceed- ing in that way as a constitutional matter.” Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___ (2014) (slip op., at 4). 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of ALITO, J. tered on the bankruptcy judge’s order except with the express consent of the parties,” Rule 7012(b). When this Rule was promulgated, no one was thinking about a Stern claim. But now, assuming that Rule 7012(b) represents a permissible interpretation of §157, the question arises whether a Stern claim should be treated as a non-core or core claim for purposes of the bankruptcy rules. See Exec- utive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___– ___ (2014) (slip op., at 9–10) (holding that, for reasons of severability, a bankruptcy court should treat a Stern claim as a non-core claim). There is no need to decide that question here. In this case, respondent forfeited any Stern objection by failing to present that argument properly in the courts below. Stern vindicates Article III, but that does not mean that Stern arguments are exempt from ordinary principles of appel- late procedure. See B&B Hardware, Inc. v. Hargis Indus- tries, Inc., ante, at 11. Cite as: 575 U. S. ____ (2015) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–935 _________________ WELLNESS INTERNATIONAL NETWORK, LIMITED, ET AL, PETITIONERS v.

Article III, of the Constitution provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Con- gress may from time to time ordain and establish.” Con- gress has in turn established 94 District Courts and 13 Courts of Appeals, composed of judges who enjoy the protections of Article III: life tenure and pay that cannot be diminished. Because these protections help to ensure the integrity and independence of the Judiciary, “we have long recognized that, in general, Congress may not with- draw from” the Article III courts “any matter which, from its nature, is the subject of a suit at the common law, or in equity, or in admiralty.” Stern v. Marshall, 564 U. S. (slip op., at 18) (internal quotation marks omitted). Congress has also authorized the appointment of bank- ruptcy and magistrate judges, who do not enjoy the protec- tions of Article III, to assist Article III courts in their work. The number of magistrate and bankruptcy judge- ships exceeds the number of circuit and district judge- 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court ships.1 And it is no exaggeration to say that without the distinguished service of these judicial colleagues, the work of the federal court system would grind nearly to a halt.2 Congress’ efforts to align the responsibilities of non- Article III judges with the boundaries set by the Constitu- tion have not always been successful. In Northern Pipe- Constr. (plurality opinion), and more recently in Stern, this Court held that Congress violated Article III by authoriz- ing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. This case presents the question whether Article III allows bankruptcy judges to adjudicate such claims with the parties’ consent. We hold that Article III is not violated when the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge. I A Before 1978, district courts typically delegated bank- ruptcy proceedings to “referees.” Executive Benefits Ins. —————— 1 Congress has authorized 179 circuit judgeships and 677 district judgeships, a total of 856. United States Courts, Status of Article III Judgeships, http://www.uscourts.gov/Statistics/JudicialBusiness/2014/ status-article-iii-judgeships.aspx (all Internet materials as visited May 22, 2015, and available in Clerk of Court’s case file). The number of authorized magistrate and bankruptcy judgeships currently stands at 883: 534 full-time magistrate judgeships and 349 bankruptcy judgeships. United States Courts, Appointments of Magistrate Judges, http://www.uscourts.gov/Statistics/JudicialBusiness/ 2014/appointments-magistrate-judges.aspx; United States Courts, Status of Bankruptcy Judgeships, http://www.uscourts.gov/Statistics/ JudicialBusiness/2014/status-bankruptcy-judgeships.aspx. 2 Between October 1, and September 30, 2014, for example, litigants filed 963,739 cases in bankruptcy courts—more than double the total number filed in district and circuit courts. United States Courts, Judicial Caseload Indicators, http://www.uscourts.gov/ Statistics/JudicialBusiness/2014/judicial-caseload-indicators.aspx. Cite as: 575 U. S. (2015) 3 Opinion of the Court Agency v. Arkison, 573 U. S. (2014) (slip op., at 4). Under the Bankruptcy Act of 1898, bankruptcy referees had “[s]ummary jurisdiction” over “claims involving ‘prop- erty in the actual or constructive possession of the bank- ruptcy court’ ”—that is, over the apportionment of the bankruptcy estate among creditors. (alteration omitted). They could preside over other proceedings— matters implicating the court’s “plenary jurisdiction”—by consent. at (slip op., at 5); see also MacDonald v. Plymouth County Trust Co., 266–267 (1932). In 1978, Congress enacted the Bankruptcy Reform Act, which repealed the 1898 Act and gave the newly created bankruptcy courts power “much broader than that exer- cised under the former referee system.” Northern Pipe- The Act “[e]liminat[ed] the distinc- tion between ‘summary’ and ‘plenary’ jurisdiction” and enabled bankruptcy courts to decide “all ‘civil proceedings arising under title 11 [the Bankruptcy title] or arising in or related to cases under title 11.’ ” (emphasis de- leted). Congress thus vested bankruptcy judges with most of the “‘powers of a court of equity, law, and admiralty,’” at 55, without affording them the benefits of Article III. This Court therefore held parts of the system unconstitu- tional in Northern Pipe. Congress responded by enacting the Bankruptcy Amendments and Federal Judgeship Act of Under that Act, district courts have original jurisdiction over bankruptcy cases and related proceedings. 28 U.S. C. (b). But “[e]ach district court may provide that any or all” bankruptcy cases and related proceedings “shall be referred to the bankruptcy judges for the dis- trict.” Bankruptcy judges are “judicial officers of the United States district court,” appointed to 14-year terms by the courts of appeals, and subject to removal for cause. (e). “The district court may withdraw” 4 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court a reference to the bankruptcy court “on its own motion or on timely motion of any party, for cause shown.” When a district court refers a case to a bankruptcy judge, that judge’s statutory authority depends on whether Congress has classified the matter as a “[c]ore proceed- in[g]” or a “[n]on-core proceedin[g],” (4)—much as the authority of bankruptcy referees, before the 1978 Act, depended on whether the proceeding was “summary” or “plenary.” Congress identified as “[c]ore” a nonexclu- sive list of 16 types of proceedings, in which it thought bankruptcy courts could constitutionally enter judgment.3 Congress gave bankruptcy courts the power to “hear and determine” core proceedings and to “enter ap- propriate orders and judgments,” subject to appellate review by the district court. see But it gave bankruptcy courts more limited author-ity in non- core proceedings: They may “hear and determine” such proceedings, and “enter appropriate orders and judg- ments,” only “with the consent of all the parties to the proceeding.” Absent consent, bankruptcy courts in non-core proceedings may only “submit proposed findings of fact and conclusions of law,” which the district courts review de novo. B Petitioner Wellness International Network is a manu- facturer of health and nutrition products.4 Wellness and respondent Sharif entered into a contract under which Sharif would distribute Wellness’ products. The relation- ship quickly soured, and in 2005, Sharif sued Wellness in —————— 3 Congress appears to have drawn the term “core” from Northern Pipe’s description of “the restructuring of debtor-creditor relations” as “the core of the federal bankruptcy power.” Northern Pipe Constr. 4 Individual petitioners Ralph and Cathy Oats are Wellness’ founders. This opinion refers to all petitioners collectively as “Wellness.” Cite as: 575 U. S. (2015) 5 Opinion of the Court the United States District Court for the Northern District of Texas. Sharif repeatedly ignored Wellness’ discovery requests and other litigation obligations, resulting in an entry of default judgment for Wellness. The District Court eventually sanctioned Sharif by awarding Wellness over $650,000 in attorney’s fees. This case arises from Well- ness’ long-running—and so far unsuccessful—efforts to collect on that judgment. In February 2009, Sharif filed for Chapter 7 bankruptcy in the Northern District of Illinois. The bankruptcy peti- tion listed Wellness as a creditor. Wellness requested documents concerning Sharif ’s assets, which Sharif did not provide. Wellness later obtained a loan application Sharif had filed in 2002, listing more than $5 million in assets. When confronted, Sharif informed Wellness and the Chapter 7 trustee that he had lied on the loan applica- tion. The listed assets, Sharif claimed, were actually owned by the Soad Wattar Living Trust (Trust), an entity Sharif said he administered on behalf of his mother, and for the benefit of his sister. Wellness pressed Sharif for information on the Trust, but Sharif again failed to respond. Wellness filed a five-count adversary complaint against Sharif in the Bankruptcy Court. See App. 5–22. Counts I–IV of the complaint objected to the discharge of Sharif ’s debts because, among other reasons, Sharif had concealed property by claiming that it was owned by the Trust. Count V of the complaint sought a declaratory judgment that the Trust was Sharif ’s alter ego and that its assets should therefore be treated as part of Sharif ’s bankruptcy estate. In his answer, Sharif admitted that the adversary proceeding was a “core proceeding” under 28 U.S. C. a proceeding in which the Bankruptcy Court could enter final judgment subject to appeal. See (2)(J); App. 24. Indeed, Sharif requested judgment in his favor on all counts of Wellness’ complaint 6 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court and urged the Bankruptcy Court to “find that the Soad Wattar Living Trust is not property of the [bankruptcy] estate.” A familiar pattern of discovery evasion ensued. Well- ness responded by filing a motion for sanctions, or, in the alternative, to compel discovery. Granting the motion to compel, the Bankruptcy Court warned Sharif that if he did not respond to Wellness’ discovery requests a default judgment would be entered against him. Sharif eventu- ally complied with some discovery obligations, but did not produce any documents related to the Trust. In July 2010, the Bankruptcy Court issued a ruling finding that Sharif had violated the court’s discovery order. See App. to Pet. for Cert. 92a–120a. It accordingly denied Sharif ’s request to discharge his debts and entered a default judgment against him in the adversary proceed- ing. And it declared, as requested by count V of Wellness’ complaint, that the assets supposedly held by the Trust were in fact property of Sharif ’s bankruptcy estate be- cause Sharif “treats [the Trust’s] assets as his own prop- erty.” at 119a. Sharif appealed to the District Court. Six weeks before Sharif filed his opening brief in the District Court, this Court decided Stern. In Stern, the Court held that Article III prevents bankruptcy courts from entering final judg- ment on claims that seek only to “augment” the bankruptcy estate and would otherwise “exis[t] without regard to any bankruptcy proceeding.” 564 U. S., at (slip op., at 27, 34). Sharif did not cite Stern in his opening brief. Rather, after the close of briefing, Sharif moved for leave to file a supplemental brief, arguing that in light of In re Ortiz, —a recently issued decision interpreting Stern—“the bankruptcy court’s order should only be treated as a report and recommendation.” App. 145. The District Court denied Sharif's motion for supplemental briefing as untimely and affirmed the Bank- Cite as: 575 U. S. (2015) 7 Opinion of the Court ruptcy Court’s judgment. The Court of Appeals for the Seventh Circuit affirmed in part and reversed in part. The Seventh Circuit acknowledged that ordinarily Sharif ’s Stern objection would “not [be] preserved because he waited too long to assert it.”5 But the court determined that the ordinary rule did not apply because Sharif ’s argument concerned “the allocation of authority between bankruptcy courts and district courts” under Article III, and thus “implicate[d] structural inter- ests.” at 7. Based on those separation-of-powers considerations, the court held that “a litigant may not waive” a Stern objection. Turning to the merits of Sharif ’s contentions, the Seventh Circuit agreed with the Bankruptcy Court’s resolution of counts I–IV of Wellness’ adversary complaint. It further concluded, however, that count V of the complaint alleged a so-called “Stern claim,” that is, “a claim designated for final adjudi- cation in the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a constitutional matter.” Executive Benefits, 573 U. S., at (slip op., at 4). The Seventh Circuit therefore ruled that the Bank- ruptcy Court lacked constitutional authority to enter final judgment on count V.6 —————— 5 Although the Seventh Circuit referred to Sharif’s failure to raise his Stern argument in a timely manner as a waiver, that court has since clarified that its decision rested on forfeiture. See (“The issue in Wellness Interna- tional Network was forfeiture rather than waiver”). 6 The Seventh Circuit concluded its opinion by considering the rem- edy for the Bankruptcy Court’s purportedly unconstitutional issuance of a final judgment. The court determined that if count V of Wellness’ complaint raised a core claim, the only statutorily authorized remedy would be for the District Court to withdraw the reference to the Bank- ruptcy Court and set a new discovery schedule. The Seventh Circuit’s reasoning on this point was rejected by our decision last Term in Executive Benefits, which held that district courts may treat Stern 8 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court We granted certiorari, 573 U. S. (2014), and now reverse the judgment of the Seventh Circuit.7 II Our precedents make clear that litigants may validly consent to adjudication by bankruptcy courts. A Adjudication by consent is nothing new. Indeed, “[d]uring the early years of the Republic, federal courts, with the consent of the litigants, regularly referred adjudi- cation of entire disputes to non-Article III referees, mas- ters, or arbitrators, for entry of final judgment in accord- ance with the referee’s report.” Brubaker, The Constitutionality of Litigant Consent to Non-Article III Bankruptcy Adjudications, 32 Bkrtcy. L. Letter No. 12, p. 6 (Dec. 2012); see, e.g., 597 (1813) (affirming damages awards in two actions that “were referred, by consent under a rule of Court to arbitra- tors”); (observ- ing that the “[p]ractice of referring pending actions under a rule of court, by consent of parties, was well known at common law,” and “is now universally regarded as the proper foundation of judgment”); Newcomb v. Wood, 97 U.S. 581, 583 (1878) (recognizing “[t]he power of a court of justice, with the consent of the parties, to appoint arbitra- tors and refer a case pending before it”). The foundational case in the modern era is Commodity Futures Trading —————— claims like non-core claims and thus are not required to restart pro- ceedings entirely when a bankruptcy court improperly enters final judgment. 7 Because the Court concludes that the Bankruptcy Court could val- idly enter judgment on Wellness’ claim with the parties’ consent, this opinion does not address, and expresses no view on, Wellness’ alterna- tive contention that the Seventh Circuit erred in concluding the claim in count V of its complaint was a Stern claim. Cite as: 575 U. S. (2015) 9 Opinion of the Court The Commodity Futures Trading Commission (CFTC), which Congress had authorized to hear customer com- plaints against commodities brokers, issued a regulation allowing itself to hear state-law counterclaims as well. William filed a complaint with the CFTC against his broker, and the broker, which had previously filed claims against in federal court, refiled them as counter- claims in the CFTC proceeding. The CFTC ruled against on the counterclaims. This Court upheld that ruling against both statutory and constitutional challenges. On the constitutional question (the one relevant here) the Court began by holding that had “waived any right he may have possessed to the full trial of [the bro- ker’s] counterclaim before an Article III court.” The Court then explained why this waiver legitimated the CFTC’s exercise of authority: “[A]s a personal right, Arti- cle III’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other per- sonal constitutional rights”—such as the right to a jury— “that dictate the procedures by which civil and criminal matters must be tried.” at 848–849. The Court went on to state that a litigant’s waiver of his “personal right” to an Article III court is not always dis- positive because Article III “not only preserves to litigants their interest in an impartial and independent federal adjudication of claims but also serves as ‘an insepa- rable element of the constitutional system of checks and balances.’ To the extent that this structural principle is implicated in a given case”—but only to that extent— “the parties cannot by consent cure the constitutional difficulty” –851. Leaning heavily on the importance of ’s consent, the Court found no structural concern implicated by the CFTC’s adjudication of the counterclaims against him. While “Congress gave the CFTC the authority to adjudi- cate such matters,” the Court wrote, 10 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court “the decision to invoke this forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction of these matters is unaffected. In such circumstances, separation of powers concerns are di- minished, for it seems self-evident that just as Con- gress may encourage parties to settle a dispute out of court or resort to arbitration without impermissible incursions on the separation of powers, Congress may make available a quasi-judicial mechanism through which willing parties may, at their option, elect to re- solve their differences.” The option for parties to submit their disputes to a non- Article III adjudicator was at most a “de minimis” in- fringement on the prerogative of the federal courts. at 856. A few years after the Court decided a pair of and —that reiter- ated the importance of consent to the constitutional analy- sis. Both cases concerned whether the Federal Magis- trates Act authorized magistrate judges to preside over jury selection in a felony trial;8 the difference was that consented to the practice while Gomez did not. That difference was dispositive. In Gomez, the Court interpreted the statute as not allowing magistrate judges to supervise voir dire without consent, emphasizing the constitutional concerns that might otherwise arise. See In the Court upheld the Magistrate Judge’s action, stating that “the defendant’s consent significantly changes the constitutional analysis.” The Court —————— 8 Inrelevant part, the Act provides that district courts may assign magistrate judges certain enumerated duties as well as “such additional duties as are not inconsistent with the Constitution and the laws of the United States.” 28 U.S. C. Cite as: 575 U. S. (2015) 11 Opinion of the Court concluded that allowing a magistrate judge to supervise jury selection—with consent—does not violate Article III, explaining that “litigants may waive their personal right to have an Article III judge preside over a civil trial,” at 9 (citing ), and that “[t]he most basic rights of criminal defendants are similarly subject to waiver,” And “[e]ven assum- ing that a litigant may not waive structural protections provided by Article III,” the Court found “no such struc- tural protections implicated by” a magistrate judge’s supervision of voir dire: “Magistrates are appointed and subject to removal by Article III judges. The ‘ultimate decision’ whether to invoke the magistrate’s assistance is made by the dis- trict court, subject to veto by the parties. The decision whether to empanel the jury whose selection a magis- trate has supervised also remains entirely with the district court. Because ‘the entire process takes place under the district court’s total control and jurisdic- tion,’ there is no danger that use of the magistrate in- volves a ‘congressional attemp[t] “to transfer jurisdic- tion [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” (ci- tations omitted; alteration in original).9 The lesson of and the history that preced- ed them is plain: The entitlement to an Article III adjudi- cator is “a personal right” and thus ordinarily “subject to —————— 9 Discounting the relevance of Gomez and the principal dissent emphasizes that neither case concerned the entry of final judgment by a non-Article III actor. See post, at 16 (opinion of ROBERTS, C. J.). Here again, the principal dissent’s insistence on formalism leads it astray. As we explained in the “responsibility and importance [of] presiding over voir dire at a felony trial” is equivalent to the “supervi- sion of entire civil and misdemeanor trials,” tasks in which magistrate judges may “order the entry of judgment” with the parties’ consent, 12 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court waiver,” Article III also serves a structural purpose, “barring congressional attempts ‘to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating’ constitutional courts and thereby prevent[ing] ‘the encroachment or aggrandizement of one branch at the expense of the other.’ ” (citations omitted). But allowing Article I adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process. B The question here, then, is whether allowing bankruptcy courts to decide Stern claims by consent would “imper- missibly threate[n] the institutional integrity of the Judi- cial Branch.” And that question must be decided not by “formalistic and unbending rules,” but “with an eye to the practical effect that the” practice “will have on the constitutionally assigned role of the federal judiciary.” ; see (“[P]ractical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III”). The Court must weigh “the extent to which the essential attributes of judicial power are reserved to Article III courts, and, con- versely, the extent to which the non-Article III forum exer- cises the range of jurisdiction and powers normally vested only in Article III courts, the origins and im- portance of the right to be adjudicated, and the con- cerns that drove Congress to depart from the re- quirements of Article III.” (internal quotation marks omitted). Applying these factors, we conclude that allowing bank- ruptcy litigants to waive the right to Article III adjudica- Cite as: 575 U. S. (2015) 13 Opinion of the Court tion of Stern claims does not usurp the constitutional prerogatives of Article III courts. Bankruptcy judges, like magistrate judges, “are appointed and subject to removal by Article III judges,” 501 U.S., ; see 28 U.S. C. (e). They “serve as judicial officers of the United States district court,” and collectively “constitute a unit of the district court” for that district, Just as “[t]he ‘ultimate decision’ whether to invoke [a] magistrate [judge]’s assistance is made by the district court,” 501 U.S., bankruptcy courts hear matters solely on a district court’s reference, which the district court may withdraw sua sponte or at the request of a party, “[S]eparation of powers con- cerns are diminished” when, as here, “the decision to invoke [a non-Article III] forum is left entirely to the parties and the power of the federal judiciary to take jurisdiction” remains in place. 478 U.S., Furthermore, like the CFTC in bankruptcy courts possess no free-floating authority to decide claims traditionally heard by Article III courts. Their ability to resolve such matters is limited to “a narrow class of com- mon law claims as an incident to the [bankruptcy courts’] primary, and unchallenged, adjudicative function.” at 854. “In such circumstances, the magnitude of any intru- sion on the Judicial Branch can only be termed de mini- mis.” Finally, there is no indication that Congress gave bank- ruptcy courts the ability to decide Stern claims in an effort to aggrandize itself or humble the Judiciary. As in “[b]ecause ‘the entire process takes place under the district court’s total control and jurisdiction,’ there is no danger that use of the [bankruptcy court] involves a ‘congres- sional attemp[t] “to transfer jurisdiction [to non-Article III tribunals] for the purpose of emasculating” constitutional courts.’ ” 501 U.S., ; see also 478 U.S., (allowing CFTC’s adjudication of 14 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court counterclaims because of “the degree of judicial control saved to the federal courts, as well as the congressional purpose behind the jurisdictional delegation, the demon- strated need for the delegation, and the limited nature of the delegation” ); Pacemaker Diagnostic Clinic of America, 544 (en banc) (Kennedy, J.) (magistrate judges may adjudicate civil cases by consent because the Federal Magistrates Act “invests the Article III judiciary with extensive administrative control over the management, composition, and operation of the magistrate system”).10 Congress could choose to rest the full share of the Judi- ciary’s labor on the shoulders of Article III judges. But doing so would require a substantial increase in the num- ber of district judgeships. Instead, Congress has supple- mented the capacity of district courts through the able —————— 10 The principal dissent accuses us of making Sharif’s consent “ ‘dis- positive’ in curing [a] structural separation of powers violation,” con- trary to the holding of Post, at 16. That argument misapprehends both and the nature of our analysis. What forbids is using consent to excuse an actual violation of Article III. See 478 U.S., at 850–851 (“To the extent that th[e] structural principle [protected by Article III] is implicated in a given case, the parties cannot by consent cure the constitutional difficulty” (emphasis added)). But confirms that consent remains highly relevant when determining, as we do here, whether a particular adjudication in fact raises constitutional concerns. See (“separation of powers concerns are dimin- ished” when “the decision to invoke [a non-Article III] forum is left entirely to the parties”). Thus, we do not rely on Sharif’s consent to “cur[e]” a violation of Article III. His consent shows, in part, why no such violation has occurred. Cf. Meltzer, Legislative Courts, Legisla- tive Power, and the Constitution, 65 Ind. L. J. 291, 303 (1990) (“[C]onsent provides, if not complete, at least very considerable reason to doubt that the tribunal poses a serious threat to the ideal of federal adjudicatory independence”); Fallon, Of Legislative Courts, Adminis- trative Agencies, and Article III, (when the parties consent, “there is substantial assurance that the agency is not generally behaving arbitrarily or otherwise offending separation-of-powers values. Judicial integrity is not at risk”). Cite as: 575 U. S. (2015) 15 Opinion of the Court assistance of bankruptcy judges. So long as those judges are subject to control by the Article III courts, their work poses no threat to the separation of powers. C Our recent decision in Stern, on which Sharif and the principal dissent rely heavily, does not compel a different result. That is because Stern—like its predecessor, North- ern Pipe—turned on the fact that the litigant “did not truly consent to” resolution of the claim against it in a non-Article III forum. 564 U. S., at (slip op., at 27). To understand Stern, it is necessary to first understand Northern Pipe. There, the Court considered whether bankruptcy judges “could ‘constitutionally be vested with jurisdiction to decide [a] state-law contract claim’ against an entity that was not otherwise part of the bankruptcy proceedings.” 564 U. S., at (slip op., at 19). In answer- ing that question in the negative, both the plurality and then-Justice Rehnquist, concurring in the judgment, noted that the entity in question did not consent to the bank- ruptcy court’s adjudication of the claim. See 458 U.S., at 80, n. 31 (plurality opinion); (opinion of Rehnquist, J.). The Court confirmed in two later cases that Northern Pipe turned on the lack of consent. See 478 U.S., (“[I]n Northern Pipe, the absence of consent to an initial adjudication before a non- Article III tribunal was relied on as a significant factor in determining that Article III forbade such adjudication”); Stern presented the same scenario. The majority cited the dissent’s observation that Northern Pipe “estab- lish[ed] only that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review,” 564 U. S., 16 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court at (slip op., at 28–29) (emphasis added; internal quota- tion marks omitted). To which the majority responded, “Just so: Substitute ‘tort’ for ‘contract,’ and that statement directly covers this case.” at (slip op., at 29); see also at (slip op., at 27) (defendant litigated in the Bankruptcy Court because he “had nowhere else to go” to pursue his claim). Because Stern was premised on non- consent to adjudication by the Bankruptcy Court, the “constitutional bar” it announced, see post, at 14 (ROBERTS, C. J., dissenting), simply does not govern the question whether litigants may validly consent to adjudi- cation by a bankruptcy court. An expansive reading of Stern, moreover, would be inconsistent with the opinion’s own description of its holding. The Court in Stern took pains to note that the question before it was “a ‘narrow’ one,” and that its answer did “not change all that much” about the division of labor between district courts and bankruptcy courts. at (slip op., at 37); see also at (slip op., at 38) (stating that Congress had exceeded the limitations of Article III “in one isolated respect”). That could not have been a fair characterization of the decision if it meant that bank- ruptcy judges could no longer exercise their longstanding authority to resolve claims submitted to them by consent. Interpreting Stern to bar consensual adjudications by bankruptcy courts would “meaningfully chang[e] the division of labor” in our judicial system, contra, at (slip op., at 37).11 —————— 11 Inadvancing its restrictive view of Stern, the principal dissent ignores the sweeping jurisprudential implications of its position. If, as the principal dissent suggests, consent is irrelevant to the Article III analysis, it is difficult to see how and were not wrongly decided. But those decisions obviously remain good law. It is the principal dissent’s position that breaks with our precedents. See Plaut v. Spendthrift Farm, Inc., (“[T]he proposition that legal defenses based upon doctrines central to the courts’ struc- Cite as: 575 U. S. (2015) 17 Opinion of the Court In sum, the cases in which this Court has found a viola- tion of a litigant’s right to an Article III decisionmaker have involved an objecting defendant forced to litigate involuntarily before a non-Article III court. The Court has never done what Sharif and the principal dissent would have us do—hold that a litigant who has the right to an Article III court may not waive that right through his consent. D The principal dissent warns darkly of the consequences of today’s decision. See post, at 17–20. To hear the princi- pal dissent tell it, the world will end not in fire, or ice, but in a bankruptcy court. The response to these ominous predictions is the same now as it was when Justice Bren- nan, dissenting in first made them nearly 30 years ago: “This is not to say, of course, that if Congress created a phalanx of non-Article III tribunals equipped to handle the entire business of the Article III courts without any Article III supervision or control and without evidence of valid and specific legislative ne- cessities, the fact that the parties had the election to proceed in their forum of choice would necessarily save the scheme from constitutional attack. But this case obviously bears no resemblance to such a sce- nario” 478 U.S., Adjudication based on litigant consent has been a con- sistent feature of the federal court system since its incep- tion. Reaffirming that unremarkable fact, we are confi- dent, poses no great threat to anyone’s birthrights, constitutional or otherwise. —————— tural independence can never be waived simply does not accord with our cases”). 18 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court III Sharif contends that to the extent litigants may validly consent to adjudication by a bankruptcy court, such con- sent must be express. We disagree. Nothing in the Constitution requires that consent to adjudication by a bankruptcy court be express. Nor does the relevant statute, 28 U.S. C. mandate express consent; it states only that a bankruptcy court must obtain “the consent”—consent simpliciter—“of all parties to the proceeding” before hearing and determining a non-core claim. And a requirement of express consent would be in great tension with our decision in Roell v. Withrow, That case concerned the interpretation of which authorizes magistrate judges to “conduct any or all proceedings in a jury or non- jury civil matter and order the entry of judgment in the case,” with “the consent of the parties.”12 The specific question in Roell was whether, as a statutory matter, the “consent” required by had to be express. The dissent argued that “[r]eading (1) to require ex- press consent not only is more consistent with the text of —————— 12 Consistent with our precedents, the Courts of Appeals have unani- mously upheld the constitutionality of See ; Bell & ; ; D. L. Auld ; United States v. Dobey, ; ; Geras v. Lafayette Display Fixtures, Inc., ; Lehman Bros. Kuhn Loeb Inc. v. Clark Oil & Refining Corp., 739 F.2d 3, 6 (en banc); 1154 ; ; ; Pacemaker Diagnostic Clinic, (en banc) (Kennedy, J.); Wharton- v. United States, 721 F. 2d 922, 929–930 (CA3 1983). Cite as: 575 U. S. (2015) 19 Opinion of the Court the statute, but also” avoids constitutional concerns by “ensur[ing] that the parties knowingly and voluntarily waive their right to an Article III judge.” (opinion of THOMAS, J.). But the majority—thus placed on notice of the constitutional concern—was untroubled by it, opining that “the Article III right is substantially honored” by permitting waiver based on “actions rather than words.” The implied consent standard articulated in Roell sup- plies the appropriate rule for adjudications by bankruptcy courts under Applied in the bankruptcy context, that standard possesses the same pragmatic virtues— increasing judicial efficiency and checking gamesman- ship—that motivated our adoption of it for consent-based adjudications by magistrate judges. See It bears emphasizing, however, that a litigant’s consent— whether express or implied—must still be knowing and voluntary. Roell makes clear that the key inquiry is whether “the litigant or counsel was made aware of the need for consent and the right to refuse it, and still volun- tarily appeared to try the case” before the non-Article III adjudicator. ; see also (“notification of the right to refuse” adjudication by a non-Article III court “is a prerequisite to any inference of consent”).13 —————— 13 Even though the Constitution does not require that consent be express, it is good practice for courts to seek express statements of consent or nonconsent, both to ensure irrefutably that any waiver of the right to Article III adjudication is knowing and voluntary and to limit subsequent litigation over the consent issue. Statutes or judicial rules may require express consent where the Constitution does not. Indeed, the Federal Rules of Bankruptcy Procedure already require that pleadings in adversary proceedings before a bankruptcy court “contain a statement that the proceeding is core or non-core and, if non-core, that the pleader does or does not consent to entry of final orders or judgment by the bankruptcy judge.” Fed. Rule Bkrtcy. Proc. 7008 (opening pleadings); see Fed. Rule Bkrtcy. Proc. 7012 (responsive pleadings). The Bankruptcy Court and the parties followed that 20 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of the Court IV It would be possible to resolve this case by determining whether Sharif in fact consented to the Bankruptcy Court’s adjudication of count V of Wellness’ adversary complaint. But reaching that determination would re- quire a deeply factbound analysis of the procedural history unique to this protracted litigation. Our resolution of the consent question—unlike the antecedent constitutional question—would provide little guidance to litigants or the lower courts. Thus, consistent with our role as “a court of review, not of first view,” Nautilus, Inc. v. Biosig Instru- ments, Inc., 572 U. S. (2014) (slip op., at 14) (in- ternal quotation marks omitted), we leave it to the Sev- enth Circuit to decide on remand whether Sharif ’s actions evinced the requisite knowing and voluntary consent, and also whether, as Wellness contends, Sharif forfeited his Stern argument below. * * * The Court holds that Article III permits bankruptcy courts to decide Stern claims submitted to them by con- sent. The judgment of the United States Court of Appeals for the Seventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— procedure in this case. See App. 6, 24; at 5–6. Cite as: 575 U. S. (2015) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES No. 13–935 WELLNESS INTERNATIONAL NETWORK, LIMITED, ET AL, PETITIONERS v. RICHARD SHARIF ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [May 26, 2015] JUSTICE ALITO, concurring in part and concurring in the judgment. I join the opinion of the Court insofar as it holds that a bankruptcy judge’s resolution of a “Stern claim”* with the consent of the parties does not violate Article III of the Constitution. The Court faithfully applies Commodity Futures Trading No one believes that an arbitrator exercises “[t]he judicial Power of the United States,” Art. III, in an ordinary, run-of-the mill arbitration. And whatever differences there may be between an arbitrator’s “decision” and a bankruptcy court’s “judgment,” those differences would seem to fall within the Court’s previous rejection of “for- malistic and unbending rules.” Whatever one thinks of it is still the law of this Court, and the parties do not ask us to revisit it. Unlike the Court, however, I would not decide whether consent may be implied. While the Bankruptcy Act just speaks of “consent,” 28 U.S. C. the Federal Rules of Bankruptcy Procedure provide that “[i]n non-core proceedings final orders and judgments shall not be en- —————— * See Stern v. Marshall, 564 U. S. A “Stern claim” is a claim that is “core” under the statute but yet “prohibited from proceed- ing in that way as a constitutional matter.” Executive Benefits Ins. Agency v. Arkison, 573 U. S. (2014) (slip op., at 4). 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF Opinion of ALITO, J. tered on the bankruptcy judge’s order except with the express consent of the parties,” Rule 7012(b). When this Rule was promulgated, no one was thinking about a Stern claim. But now, assuming that Rule 7012(b) represents a permissible interpretation of the question arises whether a Stern claim should be treated as a non-core or core claim for purposes of the bankruptcy rules. See Exec- utive Benefits Ins. Agency v. Arkison, 573 U. S. – (2014) (slip op., at 9–10) (holding that, for reasons of severability, a bankruptcy court should treat a Stern claim as a non-core claim). There is no need to decide that question here. In this case, respondent forfeited any Stern objection by failing to present that argument properly in the courts below. Stern vindicates Article III, but that does not mean that Stern arguments are exempt from ordinary principles of appel- late procedure. See B&B Hardware, Inc. v. Hargis Indus- tries, Inc., ante, at 11. Cite as: 575 U. S. (2015) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–935 WELLNESS INTERNATIONAL NETWORK, LIMITED, ET AL, PETITIONERS v.

Justice Roberts

dissenting

Wellness Int'l Network, Ltd. v. Sharif

2015-05-26

https://www.courtlistener.com/opinion/2804677/wellness-intl-network-ltd-v-sharif/

https://www.courtlistener.com/api/rest/v3/clusters/2804677/

2014-038

The Bankruptcy Court in this case granted judgment to Wellness on its claim that Sharif ’s bankruptcy estate contained assets he purportedly held in a trust. Provided that no third party asserted a substantial adverse claim to those assets, the Bankruptcy Court’s adjudication “stems from the bankruptcy itself ” rather than from “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.” Stern v. Marshall, 564 U. S. ___, ___ (2011) (slip op., at 18, 34) (internal quotation marks omitted). Article III poses no barrier to such a decision. That is enough to resolve this case. Unfortunately, the Court brushes aside this narrow basis for decision and proceeds to the serious constitutional question whether private parties may consent to an Arti­ cle III violation. In my view, they cannot. By reserving the judicial power to judges with life tenure and salary protection, Article III constitutes “an inseparable element of the constitutional system of checks and balances”—a structural safeguard that must “be jealously guarded.” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58, 60 (1982) (plurality opinion). Today the Court lets down its guard. Despite our prece­ 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting dent directing that “parties cannot by consent cure” an Article III violation implicating the structural separation of powers, Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 850–851 (1986), the majority authorizes litigants to do just that. The Court justifies its decision largely on pragmatic grounds. I would not yield so fully to functionalism. The Framers adopted the formal protec­ tions of Article III for good reasons, and “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” INS v. Chadha, 462 U.S. 919, 944 (1983). The impact of today’s decision may seem limited, but the Court’s acceptance of an Article III violation is not likely to go unnoticed. The next time Congress takes judicial power from Article III courts, the encroachment may not be so modest—and we will no longer hold the high ground of principle. The majority’s acquiescence in the erosion of our constitutional power sets a precedent that I fear we will regret. I respectfully dissent. I The Court granted certiorari on two questions in this case. The first is whether the Bankruptcy Court’s entry of final judgment on Wellness’s claim violated Article III based on Stern. The second is whether an Article III violation of the kind recognized in Stern can be cured by consent. Because the first question can be resolved on narrower grounds, I would answer it alone. A The Framers of the Constitution “lived among the ruins of a system of intermingled legislative and judicial pow­ ers.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995). Under British rule, the King “made Judges de­ pendent on his Will alone, for the tenure of their offices, Cite as: 575 U. S. ____ (2015) 3 ROBERTS, C. J., dissenting and the amount and payment of their salaries.” The Declaration of Independence ¶11. Between the Revolution and the Constitutional Convention, state legislatures routinely interfered with judgments of the courts. This history created the “sense of a sharp necessity to separate the legislative from the judicial power.” Plaut, 514 U.S., at 221; see Perez v. Mortgage Bankers Assn., 575 U. S. ___, ___–___ (2015) (THOMAS, J., concurring in judgment) (slip op., at 5–8). The result was Article III, which established a judiciary “truly distinct from both the legislature and the executive.” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamilton). Article III vests the “judicial Power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and estab­ lish.” Art. III, §1. The judges of those courts are entitled to hold their offices “during good Behaviour” and to receive compensation “which shall not be diminished” during their tenure. Ibid. The judicial power extends “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties” and to other enumer­ ated matters. Art. III, §2. Taken together, these provi­ sions define the constitutional birthright of Article III judges: to “render dispositive judgments” in cases or con­ troversies within the bounds of federal jurisdiction. Plaut, 514 U.S., at 219 (internal quotation marks omitted). With narrow exceptions, Congress may not confer power to decide federal cases and controversies upon judges who do not comply with the structural safeguards of Article III. Those narrow exceptions permit Congress to establish non-Article III courts to exercise general jurisdiction in the territories and the District of Columbia, to serve as military tribunals, and to adjudicate disputes over “public rights” such as veterans’ benefits. Northern Pipeline, 458 U.S., at 64–70 (plurality opinion). Our precedents have also recognized an exception to the 4 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting requirements of Article III for certain bankruptcy proceed­ ings. When the Framers gathered to draft the Constitu­ tion, English statutes had long empowered nonjudicial bankruptcy “commissioners” to collect a debtor’s property, resolve claims by creditors, order the distribution of assets in the estate, and ultimately discharge the debts. See 2 W. Blackstone, Commentaries *471–488. This historical practice, combined with Congress’s constitutional author- ity to enact bankruptcy laws, confirms that Congress may assign to non-Article III courts adjudications involving “the restructuring of debtor-creditor relations, which is at the core of the federal bankruptcy power.” Northern Pipe- line, 458 U.S., at 71 (plurality opinion). Although Congress may assign some bankruptcy pro­ ceedings to non-Article III courts, there are limits on that power. In Northern Pipeline, the Court invalidated statu­ tory provisions that permitted a bankruptcy court to enter final judgment on a creditor’s state law claim for breach of contract. Because that claim arose not from the bankruptcy but from independent common law sources, a majority of the Court determined that Article III required an adju­ dicator with life tenure and salary protection. See id., at 84; id., at 90–91 (Rehnquist, J., concurring in judgment). Congress responded to Northern Pipeline by allowing bankruptcy courts to render final judgments only in “core” bankruptcy proceedings. 28 U.S. C. §157(b). Those judgments may be appealed to district courts and re­ viewed under deferential standards. §158(a). In non-core proceedings, bankruptcy judges may submit proposed findings of fact and conclusions of law, which the district court must review de novo before entering final judgment. §157(c)(1). In Stern, we faced the question whether a bankruptcy court could enter final judgment on an action defined by Congress as a “core” proceeding—an estate’s counterclaim against a creditor based on state tort law. §157(b)(2)(C). Cite as: 575 U. S. ____ (2015) 5 ROBERTS, C. J., dissenting We said no. Because the tort claim neither “stem[med] from the bankruptcy itself ” nor would “necessarily be resolved in the claims allowance process,” it fell outside the recognized exceptions to Article III. 564 U. S., at ___ (slip op., at 34). Like the contract claim in Northern Pipe- line, the tort claim in Stern involved “the stuff of the tradi­ tional actions at common law tried by the courts at West­ minster in 1789.” Id., at ___ (slip op., at 18) (quoting Northern Pipeline, 458 U.S., at 90 (Rehnquist, J., concur­ ring in judgment)). Congress had no power under the Constitution to assign the resolution of such a claim to a judge who lacked the structural protections of Article III. B The question here is whether the claim Wellness sub­ mitted to the Bankruptcy Court is a “Stern claim” that requires final adjudication by an Article III court. See Executive Benefits Ins. Agency v. Arkison, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9) (assuming without decid­ ing that a fraudulent conveyance action is a “Stern claim”). As the Court recounts, Wellness alleged that Sharif had concealed about $5 million of assets by claiming that they were owned by a trust. Wellness sought a declaratory judgment that the trust was in fact Sharif ’s alter ego and that its assets should accordingly be part of his bankruptcy estate. The Bankruptcy Court granted final judgment (based on Sharif ’s default) to Wellness, declaring that the trust assets were part of Sharif ’s estate because he had treated them as his own property. Ante, at 5–6. In my view, Article III likely poses no barrier to the Bankruptcy Court’s resolution of Wellness’s claim. At its most basic level, bankruptcy is “an adjudication of inter­ ests claimed in a res.” Katchen v. Landy, 382 U.S. 323, 329 (1966) (internal quotation marks omitted). Wellness asked the Bankruptcy Court to declare that assets held by Sharif are part of that res. Defining what constitutes the 6 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting estate is the necessary starting point of every bankruptcy; a court cannot divide up the estate without first knowing what’s in it. See 11 U.S. C. §541(a). As the Solicitor General explains, “Identifying the property of the estate is therefore inescapably central to the restructuring of the debtor-creditor relationship.” Brief for United States as Amicus Curiae 14. Identifying property that constitutes the estate has long been a central feature of bankruptcy adjudication. Eng­ lish bankruptcy commissioners had authority not only to collect property in the debtor’s possession, but also to “cause any house or tenement of the bankrupt to be bro­ ken open,” in order to uncover and seize property the debtor had concealed. 2 W. Blackstone, Commentaries *485. America’s first bankruptcy statute, enacted by Congress in 1800, similarly gave commissioners “power to take into their possession, all the estate, real and personal, of every nature and description to which the [debtor] may be entitled, either in law or equity, in any manner whatso­ ever.” §5, 2 Stat. 23. That is peculiarly a bankruptcy power. The Bankruptcy Act of 1898 provides further support for Wellness’s position. Under that Act, bankruptcy referees had authority to exercise “summary” jurisdiction over certain claims, while other claims could only be adjudi- cated in “plenary” proceedings before an Article III district court. See Arkison, 573 U. S., at ___–___ (slip op., at 4–5). This Court interpreted the 1898 Act to permit bankruptcy referees to exercise summary jurisdiction to determine whether property in the actual or constructive possession of a debtor should come within the estate, at least when no third party asserted more than a “merely colorable” claim to the property. Mueller v. Nugent, 184 U.S. 1, 15 (1902). In the legal parlance of the times, a “merely colorable” claim was one that existed “in appearance only, and not in reality.” Black’s Law Dictionary 223 (1891). So a bank­ Cite as: 575 U. S. ____ (2015) 7 ROBERTS, C. J., dissenting ruptcy referee could exercise summary jurisdiction over property in the debtor’s possession as long as no third party asserted a “substantial adverse” claim. Taubel- Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 431–433 (1924). Here, Sharif does not contest that he held legal title to the assets in the trust. Assuming that no third party asserted a substantial adverse claim to those assets—an inquiry for the Bankruptcy Court on remand—Wellness’s alter ego claim fits comfortably into the category of cases that bankruptcy referees could have decided by them­ selves under the 1898 Act. In Mueller, for example, this Court held that a bank­ ruptcy referee could exercise summary jurisdiction over property in the possession of a third party acting as the debtor’s agent. 184 U.S., at 14–17; see Black’s Law Dic­ tionary 302 (10th ed. 2014) (example of a merely “color­ able” claim is “one made by a person holding property as an agent or bailee of the bankrupt”). Similarly, this Court held that a bankruptcy referee could exercise summary jurisdiction over a creditor’s claim that the debtor had concealed assets under the veil of a corporate entity that was “nothing but a sham and a cloak.” Sampsell v. Impe- rial Paper & Color Corp., 313 U.S. 215, 216–217 (1941) (internal quotation marks omitted), rev’g 114 F.2d 49, 52 (CA9 1940) (describing creditor’s claim that corporation was debtor’s “alter ego”). As the Court explained in Sampsell, the “legal existence of the affiliated corporation” did not automatically require a plenary proceeding, be­ cause “[m]ere legal paraphernalia will not suffice to trans­ form into a substantial adverse claimant a corporation whose affairs are so closely assimilated to the affairs of the dominant stockholder that in substance it is little more than his corporate pocket.” 313 U.S., at 218. Just as the bankruptcy referee in that case had authority to decide whether assets allegedly concealed behind the corporate veil belonged to the bankruptcy estate, the Bankruptcy 8 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting Court here had authority to decide whether the assets allegedly concealed in the trust belonged to Sharif ’s estate. Sharif contends that Wellness’s alter ego claim is more like an allegation of a fraudulent conveyance, which this Court has implied must be adjudicated by an Article III court. See Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 56 (1989); Arkison, 573 U. S., at ___–___ (slip op., at 8–9). Although both actions aim to remedy a debtor’s deception, they differ in a critical respect. A fraudulent conveyance claim seeks assets in the hands of a third party, while an alter ego claim targets only the debtor’s “second self.” Webster’s New International Dictionary 76 (2d ed. 1954). That distinction is significant given bankruptcy’s historic domain over property within the actual or constructive “possession [of] the bankrupt at the time of the filing of the petition.” Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 (1940). Through a fraudulent conveyance, a dishonest debtor relinquishes possession of assets before filing for bankruptcy. Reclaiming those assets for the estate requires depriving third parties of property within their otherwise lawful possession and control, an action that “quintessentially” required a suit at common law. Granfinanciera, 492 U.S., at 56. By contrast, a debtor’s possession of property provided “an adequate basis” for a bankruptcy referee to adjudicate a dispute over title in a summary proceeding. Thompson, 309 U.S., at 482; see Mueller, 184 U.S., at 15–16 (distinguishing claim to prop­ erty in possession of debtor’s agent from fraudulent con­ veyance claim in determining that bankruptcy referee could exercise summary jurisdiction). In sum, unlike the fraudulent conveyance claim in Granfinanciera, Wellness’s alter ego claim alleges that assets within Sharif ’s actual or constructive possession belong to his estate. And unlike the breach of contract and tort claims at issue in Northern Pipeline and Stern, Cite as: 575 U. S. ____ (2015) 9 ROBERTS, C. J., dissenting Wellness’s claim stems not from any independent source of law but “from the bankruptcy itself.” Stern, 564 U. S., at ___ (slip op., at 34). Provided that no third party asserted a substantial adverse claim to the trust assets, Wellness’s claim therefore falls within the narrow historical excep­ tion that permits a non-Article III adjudicator in certain bankruptcy proceedings. I would reverse the contrary holding by the Court of Appeals and end our inquiry there, rather than deciding a broader question that may not be necessary to the disposition of this case. II The Court “expresses no view” on whether Wellness’s claim was a Stern claim. Ante, at 8, n. 7. Instead, the Court concludes that the Bankruptcy Court had constitu­ tional authority to enter final judgment on Wellness’s claim either way. The majority rests its decision on Sha­ rif ’s purported consent to the Bankruptcy Court’s adjudi­ cation. But Sharif has no authority to compromise the structural separation of powers or agree to an exercise of judicial power outside Article III. His consent therefore cannot cure a constitutional violation. A “[I]f there is a principle in our Constitution . . . more sacred than another,” James Madison said on the floor of the First Congress, “it is that which separates the Legisla­ tive, Executive, and Judicial powers.” 1 Annals of Cong. 581 (1789). A strong word, “sacred.” Madison was the principal drafter of the Constitution, and he knew what he was talking about. By diffusing federal powers among three different branches, and by protecting each branch against incursions from the others, the Framers devised a structure of government that promotes both liberty and accountability. See Bond v. United States, 564 U. S. ___, ___–___ (2011) (slip op., at 10–11); Free Enterprise Fund v. 10 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting Public Company Accounting Oversight Bd., 561 U.S. 477, 497–501 (2010) (PCAOB); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Preserving the separation of powers is one of this Court’s most weighty responsibilities. In performing that duty, we have not hesitated to enforce the Constitution’s mandate “that one branch of the Government may not intrude upon the central prerogatives of another.” Loving v. United States, 517 U.S. 748, 757 (1996). We have accordingly invalidated executive actions that encroach upon the power of the Legislature, see NLRB v. Noel Canning, 573 U. S. ___ (2014); Youngstown, 343 U.S. 579; legislative actions that invade the province of the Execu­ tive, see PCAOB, 561 U.S. 477; Bowsher v. Synar, 478 U.S. 714 (1986); Chadha, 462 U.S. 919; Myers v. United States, 272 U.S. 52 (1926); and actions by either branch that trench upon the territory of the Judiciary, see Stern, 564 U. S. ___; Plaut, 514 U.S. 211; United States v. Will, 449 U.S. 200 (1980); United States v. Klein, 13 Wall. 128 (1872); Hayburn’s Case, 2 Dall. 409 (1792). In these and other cases, we have emphasized that the values of liberty and accountability protected by the sepa­ ration of powers belong not to any branch of the Govern­ ment but to the Nation as a whole. See Bowsher, 478 U.S., at 722. A branch’s consent to a diminution of its constitutional powers therefore does not mitigate the harm or cure the wrong. “Liberty is always at stake when one or more of the branches seek to transgress the separa­ tion of powers.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (KENNEDY, J., concurring). When the Executive and the Legislature agreed to bypass the Article I, §7, requirements of bicameralism and presentment by creating a Presidential line-item veto—a very pragmatic proposal—the Court held that the arrangement violated the Constitution notwithstanding the voluntary participa­ Cite as: 575 U. S. ____ (2015) 11 ROBERTS, C. J., dissenting tion of both branches. Id., at 421 (majority opinion). Likewise, the Court struck down a one-House “legislative veto” that violated Article I, §7, even though Presidents and Congresses had agreed to include similar provisions in hundreds of laws for more than 50 years. Chadha, 462 U.S., at 944–945. In neither of these cases did the branches’ willing em­ brace of a separation of powers violation weaken the Court’s scrutiny. To the contrary, the branches’ “enthusi­ asm” for the offending arrangements “ ‘sharpened rather than blunted’ our review.” Noel Canning, 573 U. S., at ___ (SCALIA, J., concurring in judgment) (slip op., at 4) (quot­ ing Chadha, 462 U. S, at 944). In short, because the structural provisions of the Constitution protect liberty and not just government entities, “the separation of pow­ ers does not depend on . . . whether ‘the encroached-upon branch approves the encroachment.’ ” PCAOB, 561 U.S., at 497 (quoting New York v. United States, 505 U.S. 144, 182 (1992)). B If a branch of the Federal Government may not consent to a violation of the separation of powers, surely a private litigant may not do so. Just as a branch of Government may not consent away the individual liberty interest protected by the separation of powers, so too an individual may not consent away the institutional interest protected by the separation of powers. To be sure, a private litigant may consensually relinquish individual constitutional rights. A federal criminal defendant, for example, may knowingly and voluntarily waive his Sixth Amendment right to a jury trial by pleading guilty to a charged offense. See Brady v. United States, 397 U.S. 742, 748 (1970). But that same defendant may not agree to stand trial on fed­ eral charges before a state court, a foreign court, or a moot court, because those courts have no constitutional author­ 12 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting ity to exercise judicial power over his case, and he has no power to confer it. A “lack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties.” Mitchell v. Maurer, 293 U.S. 237, 244 (1934). As the majority recognizes, the Court’s most extensive discussion of litigant consent in a separation of powers case occurred in Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). There the Court held that Article III confers both a “personal right” that can be waived through consent and a structural component that “safeguards the role of the Judicial Branch in our tripar­ tite system.” Id., at 848, 850. “To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III.” Id., at 850–851. Thus, when “Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.” Id., at 851. Schor’s holding that a private litigant can consent to an Article III violation that affects only his “personal right” has been vigorously contested. See id., at 867 (Brennan, J., dissenting) (“Because the individual and structural interests served by Article III are coextensive, I do not believe that a litigant may ever waive his right to an Article III tribunal where one is constitutionally re­ quired”); Granfinanciera, 492 U.S., at 70 (SCALIA, J., concurring in part and concurring in judgment). But whatever the merits of that position, nobody disputes that Schor forbids a litigant from consenting to a constitutional violation when the structural component of Article III “is implicated.” 478 U.S., at 850–851. Thus, the key inquiry in this case—as the majority puts it—is “whether allowing bankruptcy courts to decide Stern claims by consent would Cite as: 575 U. S. ____ (2015) 13 ROBERTS, C. J., dissenting ‘impermissibly threaten the institutional integrity of the Judicial Branch.’ ” Ante, at 12 (quoting Schor, 478 U.S., at 851; alteration omitted). One need not search far to find the answer. In Stern, this Court applied the analysis from Schor to bankruptcy courts and concluded that they lack Article III authority to enter final judgments on matters now known as Stern claims. The Court noted that bankruptcy courts, unlike the administrative agency in Schor, were endowed by Congress with “substantive jurisdiction reaching any area of the corpus juris,” power to render final judgments en­ forceable without any action by Article III courts, and authority to adjudicate counterclaims entirely independ­ ent of the bankruptcy itself. 564 U. S., at ___–___ (slip op., at 25–29). The Court concluded that allowing Congress to bestow such authority on non-Article III courts would “compromise the integrity of the system of separated powers and the role of the Judiciary in that system.” Id., at ___ (slip op., at 38). If there was any room for doubt about the basis for its holding, the Court dispelled it by asking a question: “Is there really a threat to the separa­ tion of powers where Congress has conferred the judicial power outside Article III only over certain counterclaims in bankruptcy?” Id., at ___ (slip op., at 37). “The short but emphatic answer is yes.” Ibid. In other words, allowing bankruptcy courts to decide Stern claims by consent would “impermissibly threaten the institutional integrity of the Judicial Branch.” Ante, at 12 (internal quotation marks and alteration omitted). It is little wonder that the Court of Appeals felt itself bound by Stern and Schor to hold that Sharif ’s consent could not cure the Stern violation. 727 F.3d 751, 771 (CA7 2013). Other Courts of Appeals have adopted the same reading. See In re BP RE, L. P., 735 F.3d 279, 287 (CA5 2013); Waldman v. Stone, 698 F.3d 910, 917–918 (CA6 2012). The majority attempts to avoid this conclusion through 14 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting an imaginative reconstruction of Stern. As the majority sees it, Stern “turned on the fact that the litigant ‘did not truly consent to’ resolution of the claim” against him in the Bankruptcy Court. Ante, at 15 (quoting 564 U. S., at ___ (slip op., at 27)). That is not a proper reading of the decision. The constitutional analysis in Stern, spanning 22 pages, contained exactly one affirmative reference to the lack of consent. See ibid. That reference came amid a long list of factors distinguishing the proceeding in Stern from the proceedings in Schor and other “public rights” cases. 564 U. S., at ___–___ (slip op., at 27–29). Stern’s subsequent sentences made clear that the notions of con­ sent relied upon by the Court in Schor did not apply in bankruptcy because “creditors lack an alternative forum to the bankruptcy court in which to pursue their claims.” 564 U. S., at ___ (slip op., at 28) (quoting Granfinanciera, 492 U.S., at 59, n. 14). Put simply, the litigant in Stern did not consent because he could not consent given the nature of bankruptcy. There was an opinion in Stern that turned heavily on consent: the dissent. 564 U. S., at ___–___ (opinion of BREYER, J.) (slip op., at 12–14). The Stern majority re­ sponded to the dissent with a counterfactual: Even if consent were relevant to the analysis, that factor would not change the result because the litigant did not truly consent. Id., at ___–___ (slip op., at 28–29). Moreover, Stern held that “it does not matter who” authorizes a bankruptcy judge to render final judgments on Stern claims, because the “constitutional bar remains.” Id., at ___ (slip op., at 36). That holding is incompatible with the majority’s conclusion today that two litigants can author­ ize a bankruptcy judge to render final judgments on Stern claims, despite the constitutional bar that remains. The majority also relies heavily on the supervision and control that Article III courts exercise over bankruptcy courts. Ante, at 12–15. As the majority notes, court of Cite as: 575 U. S. ____ (2015) 15 ROBERTS, C. J., dissenting appeals judges appoint bankruptcy judges, and bankruptcy judges receive cases only on referral from district courts (although every district court in the country has adopted a standing rule automatically referring all bankruptcy filings to bankruptcy judges, see 1 Collier on Bankruptcy ¶3.02[1], p. 3–26 (16th ed. 2014)). The problem is that Congress has also given bankruptcy courts authority to enter final judgments subject only to deferential appellate review, and Article III precludes those judgments when they involve Stern claims. The fact that Article III judges played a role in the Article III violation does not remedy the constitutional harm. We have already explained why. It is a fundamental principle that no branch of govern­ ment can delegate its constitutional functions to an actor who lacks authority to exercise those functions. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472 (2001); Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936). Such delegations threaten liberty and thwart accountability by empowering entities that lack the struc­ tural protections the Framers carefully devised. See Department of Transportation v. Association of American Railroads, 575 U. S. ___, ___–___ (2015) (ALITO, J., con­ curring) (slip op., at 6–7); id., at ___–___ (THOMAS, J., concurring in judgment) (slip op., at 2–3); Mistretta v. United States, 488 U.S. 361, 417–422 (1989) (SCALIA, J., dissenting). Article III judges have no constitutional authority to delegate the judicial power—the power to “render dispositive judgments”—to non-Article III judges, no matter how closely they control or supervise their work. Plaut, 514 U.S., at 219 (internal quotation marks omitted). In any event, the majority’s arguments about supervi­ sion and control are not new. They were considered and rejected in Stern. See 564 U. S., at ___ (slip op., at 36) (“it does not matter who appointed the bankruptcy judge or authorized the judge to render final judgments”); see also 16 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting Northern Pipeline, 458 U.S., at 84–86 (plurality opinion); id., at 91 (Rehnquist, J., concurring in judgment). The majority points to no differences between the bankruptcy proceeding in Stern and the bankruptcy proceeding here, except for Sharif ’s purported consent. The majority thus treats consent as “dispositive” in curing the structural separation of powers violation—precisely what Schor said consent could not do. 478 U.S., at 851. C Eager to change the subject from Stern, the majority devotes considerable attention to defending the authority of magistrate judges, who may conduct certain proceed­ ings with the consent of the parties under 28 U.S. C. §636. No one here challenges the constitutionality of magistrate judges or disputes that they, like bankruptcy judges, may issue reports and recommendations that are reviewed de novo by Article III judges. The cases about magistrate judges cited by the majority therefore have little bearing on this case, because none of them involved a constitutional challenge to the entry of final judgment by a non-Article III actor. See Roell v. Withrow, 538 U.S. 580 (2003) (statutory challenge only); Peretz v. United States, 501 U.S. 923 (1991) (challenge to a magistrate judge’s conduct of voir dire in a felony trial); Gomez v. United States, 490 U.S. 858 (1989) (same). The majority also points to 19th-century cases in which courts referred disputes to non-Article III referees, mas­ ters, or arbitrators. Ante, at 8. In those cases, however, it was the Article III court that ultimately entered final judgment. E.g., Thornton v. Carson, 7 Cranch 596, 600 (1813) (“the Court was right in entering the judgment for the sums awarded”). Article III courts do refer matters to non-Article III actors for assistance from time to time. This Court does so regularly in original jurisdiction cases. See, e.g., Kansas v. Nebraska, 574 U. S. ___, ___ (2015) Cite as: 575 U. S. ____ (2015) 17 ROBERTS, C. J., dissenting (slip op., at 1). But under the Constitution, the “ultimate responsibility for deciding” the case must remain with the Article III court. Id., at ___ (slip op., at 6) (quoting Colo- rado v. New Mexico, 467 U.S. 310, 317 (1984)). The concurrence’s comparison of bankruptcy judges to arbitrators is similarly inapt. Ante, at 1 (opinion of ALITO, J.). Arbitration is “a matter of contract” by which parties agree to resolve their disputes in a private forum. Rent-A- Center, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010). Such an arrangement does not implicate Article III any more than does an agreement between two business part­ ners to submit a difference of opinion to a mutually trusted friend. Arbitration agreements, like most private con­ tracts, can be enforced in court. And Congress, pursuant to its Commerce Clause power, has authorized district courts to enter judgments enforcing arbitration awards under certain circumstances. See 9 U.S. C. §9. But this ordinary scheme of contract enforcement creates no consti­ tutional concern. As the concurrence acknowledges, only Article III judges—not arbitrators—may enter final judg­ ments enforcing arbitration awards. Ante, at 1. The discussion of magistrate judges, masters, arbitra­ tors, and the like fits with the majority’s focus on the supposedly dire consequences that would follow a decision that parties cannot consent to the final adjudication of Stern claims in bankruptcy courts. Of course, it “goes without saying” that practical considerations of efficiency and convenience cannot trump the structural protections of the Constitution. Stern, 564 U. S., at ___ (slip op., at 36); see Perez, 575 U. S., at ___ (THOMAS, J., concurring in judgment) (slip op., at 20) (“Even in the face of perceived necessity, the Constitution protects us from ourselves.”). And I find it hard to believe that the Framers in Philadel­ phia, who took great care to ensure that the Judiciary was “truly distinct” from the Legislature, would have been comforted to know that Congress’s incursion here could 18 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting “only be termed de minimis.” Ante, at 13 (quoting Schor, 478 U.S., at 856). In any event, the majority overstates the consequences of enforcing the requirements of Article III in this case. As explained in Part I, Wellness’s claim may not be a Stern claim, in which case the bankruptcy statute would apply precisely as Congress wrote it. Even if Wellness’s claim were a Stern claim, the District Court would not need to start from scratch. As this Court held in Arkison, the District Court could treat the bankruptcy judge’s decision as a recommendation and enter judgment after performing de novo review. 573 U. S., at ___ (slip op., at 4). In Stern, the Court cautioned that Congress “may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely.” 564 U. S., at ___ (slip op., at 37). The majority sees no reason to fret, however, so long as two private parties consent. Ante, at 14, n. 10. But such parties are unlikely to carefully weigh the long-term structural independence of the Article III judiciary against their own short-term priorities. Perhaps the majority’s acquiescence in this diminution of constitu­ tional authority will escape notice. Far more likely, how­ ever, it will amount to the kind of “blueprint for extensive expansion of the legislative power” that we have resisted in the past. PCAOB, 561 U.S., at 500 (quoting Metropoli- tan Washington Airports Authority v. Citizens for Abate- ment of Aircraft Noise, Inc., 501 U.S. 252, 277 (1991)). The encroachment at issue here may seem benign enough. Bankruptcy judges are devoted professionals who strive to be fair to all sides, and litigants can be trusted to protect their own interests when deciding whether to consent. But the fact remains that Congress controls the salary and tenure of bankruptcy judges, and the Legisla­ ture’s present solicitude provides no guarantee of its fu­ ture restraint. See Glidden Co. v. Zdanok, 370 U.S. 530, 534 (1962) (plurality opinion). Once Congress knows that Cite as: 575 U. S. ____ (2015) 19 ROBERTS, C. J., dissenting it can assign federal claims to judges outside Article III with the parties’ consent, nothing would limit its exercise of that power to bankruptcy. Congress may consider it advantageous to allow claims to be heard before judges subject to greater legislative control in any number of areas of federal concern. As for the requirement of con­ sent, Congress can find ways to “encourage” consent, say by requiring it as a condition of federal benefits. That has worked to expand Congress’s power before. See, e.g., College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 686 (1999) (“Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take”); South Dakota v. Dole, 483 U.S. 203, 207 (1987) (same). Legislative designs of this kind would not displace the Article III judiciary overnight. But steady erosion of Article III authority, no less than a brazen usurpation, violates the constitutional separation of powers. In a Federal Government of limited powers, one branch’s loss is another branch’s gain, see PCAOB, 561 U.S., at 500, so whether a branch aims to “arrogate power to itself ” or to “impair another in the performance of its constitutional duties,” the Constitution forbids the transgression all the same. Loving, 517 U.S., at 757. As we have cautioned, “[s]light encroachments create new boundaries from which legions of power can seek new territory to capture.” Stern, 564 U. S., at ___ (slip op., at 38) (internal quotation marks omitted). The Framers understood this danger. They warned that the Legislature would inevitably seek to draw greater power into its “impetuous vortex,” The Federalist No. 48, at 309 (J. Madison), and that “power over a man’s subsist­ ence amounts to a power over his will,” id., No. 79, at 472 (A. Hamilton) (emphasis deleted). In response, the Fram­ ers adopted the structural protections of Article III, “es­ 20 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting tablishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensi­ ble in the heat of interbranch conflict.” Plaut, 514 U.S., at 239. As this Court once put it, invoking Frost, “Good fences make good neighbors.” Id., at 240. Ultimately, however, the structural protections of Arti­ cle III are only as strong as this Court’s will to enforce them. In Madison’s words, the “great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” The Federalist No. 51, at 321–322 (J. Madison). The Court today declines to resist encroachment by the Legis­ lature. Instead it holds that a single federal judge, for reasons adequate to him, may assign away our hard-won constitutional birthright so long as two private parties agree. I hope I will be wrong about the consequences of this decision for the independence of the Judicial Branch. But for now, another literary passage comes to mind: It profits the Court nothing to give its soul for the whole world . . . but to avoid Stern claims? I respectfully dissent. Cite as: 575 U. S. ____ (2015) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–935 _________________ WELLNESS INTERNATIONAL NETWORK, LIMITED, ET AL, PETITIONERS v.

The Bankruptcy Court in this case granted judgment to Wellness on its claim that Sharif ’s bankruptcy estate contained assets he purportedly held in a trust. Provided that no third party asserted a substantial adverse claim to those assets, the Bankruptcy Court’s adjudication “stems from the bankruptcy itself ” rather than from “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789.” Stern v. Marshall, 564 U. S. (2011) (slip op., at 18, 34) (internal quotation marks omitted). Article III poses no barrier to such a decision. That is enough to resolve this case. Unfortunately, the Court brushes aside this narrow basis for decision and proceeds to the serious constitutional question whether private parties may consent to an Arti­ cle III violation. In my view, they cannot. By reserving the judicial power to judges with life tenure and salary protection, Article III constitutes “an inseparable element of the constitutional system of checks and balances”—a structural safeguard that must “be jealously guarded.” Northern Pipe Constr. Today the Court lets down its guard. Despite our prece­ 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting dent directing that “parties cannot by consent cure” an Article III violation implicating the structural separation of powers, Commodity Futures Trading the majority authorizes litigants to do just that. The Court justifies its decision largely on pragmatic grounds. I would not yield so fully to functionalism. The Framers adopted the formal protec­ tions of Article III for good reasons, and “the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution.” INS v. Chadha, The impact of today’s decision may seem limited, but the Court’s acceptance of an Article III violation is not likely to go unnoticed. The next time Congress takes judicial power from Article III courts, the encroachment may not be so modest—and we will no longer hold the high ground of principle. The majority’s acquiescence in the erosion of our constitutional power sets a precedent that I fear we will regret. I respectfully dissent. I The Court granted certiorari on two questions in this case. The first is whether the Bankruptcy Court’s entry of final judgment on Wellness’s claim violated Article III based on Stern. The second is whether an Article III violation of the kind recognized in Stern can be cured by consent. Because the first question can be resolved on narrower grounds, I would answer it alone. A The Framers of the Constitution “lived among the ruins of a system of intermingled legislative and judicial pow­ ers.” (1995). Under British rule, the King “made Judges de­ pendent on his Will alone, for the tenure of their offices, Cite as: 575 U. S. (20) 3 ROBERTS, C. J., dissenting and the amount and payment of their salaries.” The Declaration of Independence ¶11. Between the Revolution and the Constitutional Convention, state legislatures routinely interfered with judgments of the courts. This history created the “sense of a sharp necessity to separate the legislative from the judicial power.” 514 U.S., at 221; see Perez v. Mortgage Bankers Assn., 575 U. S. – (20) (THOMAS, J., concurring in judgment) (slip op., at 5–8). The result was Article III, which established a judiciary “truly distinct from both the legislature and the executive.” The Federalist No. 78, p. 466 (C. Rossiter ed. 1961) (A. Hamilton). Article III vests the “judicial Power of the United States” in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and estab­ lish.” Art. III, The judges of those courts are entitled to hold their offices “during good Behaviour” and to receive compensation “which shall not be diminished” during their tenure. The judicial power extends “to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties” and to other enumer­ ated matters. Art. III, Taken together, these provi­ sions define the constitutional birthright of Article III judges: to “render dispositive judgments” in cases or con­ troversies within the bounds of federal jurisdiction. 514 U.S., at With narrow exceptions, Congress may not confer power to decide federal cases and controversies upon judges who do not comply with the structural safeguards of Article III. Those narrow exceptions permit Congress to establish non-Article III courts to exercise general jurisdiction in the territories and the District of Columbia, to serve as military tribunals, and to adjudicate disputes over “public rights” such as veterans’ benefits. Northern Pipe, 458 U.S., at 64–70 Our precedents have also recognized an exception to the 4 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting requirements of Article III for certain bankruptcy proceed­ ings. When the Framers gathered to draft the Constitu­ tion, English statutes had long empowered nonjudicial bankruptcy “commissioners” to collect a debtor’s property, resolve claims by creditors, order the distribution of assets in the estate, and ultimately discharge the debts. See 2 W. Blackstone, Commentaries *471–488. This historical practice, combined with Congress’s constitutional author- ity to enact bankruptcy laws, confirms that Congress may assign to non-Article III courts adjudications involving “the restructuring of debtor-creditor relations, which is at the core of the federal bankruptcy power.” Northern Pipe- Although Congress may assign some bankruptcy pro­ ceedings to non-Article III courts, there are limits on that power. In Northern Pipe, the Court invalidated statu­ tory provisions that permitted a bankruptcy court to enter final judgment on a creditor’s state law claim for breach of contract. Because that claim arose not from the bankruptcy but from independent common law sources, a majority of the Court determined that Article III required an adju­ dicator with life tenure and salary protection. See at 84; at 90–91 Congress responded to Northern Pipe by allowing bankruptcy courts to render final judgments only in “core” bankruptcy proceedings. 28 U.S. C. Those judgments may be appealed to district courts and re­ viewed under deferential standards. In non-core proceedings, bankruptcy judges may submit proposed findings of fact and conclusions of law, which the district court must review de novo before entering final judgment. In Stern, we faced the question whether a bankruptcy court could enter final judgment on an action defined by Congress as a “core” proceeding—an estate’s counterclaim against a creditor based on state tort law. Cite as: 575 U. S. (20) 5 ROBERTS, C. J., dissenting We said no. Because the tort claim neither “stem[med] from the bankruptcy itself ” nor would “necessarily be resolved in the claims allowance process,” it fell outside the recognized exceptions to Article III. 564 U. S., at (slip op., at 34). Like the contract claim in Northern Pipe- the tort claim in Stern involved “the stuff of the tradi­ tional actions at common law tried by the courts at West­ minster in 1789.” at (slip op., at 18) (quoting Northern Pipe, (Rehnquist, J., concur­ ring in judgment)). Congress had no power under the Constitution to assign the resolution of such a claim to a judge who lacked the structural protections of Article III. B The question here is whether the claim Wellness sub­ mitted to the Bankruptcy Court is a “Stern claim” that requires final adjudication by an Article III court. See Executive Benefits Ins. Agency v. Arkison, 573 U. S. – (2014) (slip op., at 8–9) (assuming without decid­ ing that a fraudulent conveyance action is a “Stern claim”). As the Court recounts, Wellness alleged that Sharif had concealed about $5 million of assets by claiming that they were owned by a trust. Wellness sought a declaratory judgment that the trust was in fact Sharif ’s alter ego and that its assets should accordingly be part of his bankruptcy estate. The Bankruptcy Court granted final judgment (based on Sharif ’s default) to Wellness, declaring that the trust assets were part of Sharif ’s estate because he had treated them as his own property. Ante, at 5–6. In my view, Article III likely poses no barrier to the Bankruptcy Court’s resolution of Wellness’s claim. At its most basic level, bankruptcy is “an adjudication of inter­ ests claimed in a res.” 329 (1966) Wellness asked the Bankruptcy Court to declare that assets held by Sharif are part of that res. Defining what constitutes the 6 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting estate is the necessary starting point of every bankruptcy; a court cannot divide up the estate without first knowing what’s in it. See 11 U.S. C. As the Solicitor General explains, “Identifying the property of the estate is therefore inescapably central to the restructuring of the debtor-creditor relationship.” Brief for United States as Amicus Curiae 14. Identifying property that constitutes the estate has long been a central feature of bankruptcy adjudication. Eng­ lish bankruptcy commissioners had authority not only to collect property in the debtor’s possession, but also to “cause any house or tenement of the bankrupt to be bro­ ken open,” in order to uncover and seize property the debtor had concealed. 2 W. Blackstone, Commentaries *485. America’s first bankruptcy statute, enacted by Congress in 1800, similarly gave commissioners “power to take into their possession, all the estate, real and personal, of every nature and description to which the [debtor] may be entitled, either in law or equity, in any manner whatso­ ever.” That is peculiarly a bankruptcy power. The Bankruptcy Act of 1898 provides further support for Wellness’s position. Under that Act, bankruptcy referees had authority to exercise “summary” jurisdiction over certain claims, while other claims could only be adjudi- cated in “plenary” proceedings before an Article III district court. See Arkison, 573 U. S., at – (slip op., at 4–5). This Court interpreted the 1898 Act to permit bankruptcy referees to exercise summary jurisdiction to determine whether property in the actual or constructive possession of a debtor should come within the estate, at least when no third party asserted more than a “merely colorable” claim to the property. In the legal parlance of the times, a “merely colorable” claim was one that existed “in appearance only, and not in reality.” Black’s Law Dictionary 223 (1891). So a bank­ Cite as: 575 U. S. (20) 7 ROBERTS, C. J., dissenting ruptcy referee could exercise summary jurisdiction over property in the debtor’s possession as long as no third party asserted a “substantial adverse” claim. Taubel- Scott-Kitzmiller Here, Sharif does not contest that he held legal title to the assets in the trust. Assuming that no third party asserted a substantial adverse claim to those assets—an inquiry for the Bankruptcy Court on remand—Wellness’s alter ego claim fits comfortably into the category of cases that bankruptcy referees could have decided by them­ selves under the 1898 Act. In for example, this Court held that a bank­ ruptcy referee could exercise summary jurisdiction over property in the possession of a third party acting as the debtor’s –17; see Black’s Law Dic­ tionary 302 (10th ed. 2014) (example of a merely “color­ able” claim is “one made by a person holding property as an agent or bailee of the bankrupt”). Similarly, this Court held that a bankruptcy referee could exercise summary jurisdiction over a creditor’s claim that the debtor had concealed assets under the veil of a corporate entity that was “nothing but a sham and a cloak.” 313 U.S. 2, rev’g (CA9 1940) (describing creditor’s claim that corporation was debtor’s “alter ego”). As the Court explained in Sampsell, the “legal existence of the affiliated corporation” did not automatically require a plenary proceeding, be­ cause “[m]ere legal paraphernalia will not suffice to trans­ form into a substantial adverse claimant a corporation whose affairs are so closely assimilated to the affairs of the dominant stockholder that in substance it is little more than his corporate pocket.” Just as the bankruptcy referee in that case had authority to decide whether assets allegedly concealed behind the corporate veil belonged to the bankruptcy estate, the Bankruptcy 8 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting Court here had authority to decide whether the assets allegedly concealed in the trust belonged to Sharif ’s estate. Sharif contends that Wellness’s alter ego claim is more like an allegation of a fraudulent conveyance, which this Court has implied must be adjudicated by an Article III court. See S. 56 ; Arkison, 573 U. S., at – (slip op., at 8–9). Although both actions aim to remedy a debtor’s deception, they differ in a critical respect. A fraudulent conveyance claim seeks assets in the hands of a third party, while an alter ego claim targets only the debtor’s “second self.” Webster’s New International Dictionary 76 (2d ed. 1954). That distinction is significant given bankruptcy’s historic domain over property within the actual or constructive “possession [of] the bankrupt at the time of the filing of the petition.” Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 481 (1940). Through a fraudulent conveyance, a dishonest debtor relinquishes possession of assets before filing for bankruptcy. Reclaiming those assets for the estate requires depriving third parties of property within their otherwise lawful possession and control, an action that “quintessentially” required a suit at common law. By contrast, a debtor’s possession of property provided “an adequate basis” for a bankruptcy referee to adjudicate a dispute over title in a summary proceeding. U.S., at 482; see 184 U.S., at –16 (distinguishing claim to prop­ erty in possession of debtor’s agent from fraudulent con­ veyance claim in determining that bankruptcy referee could exercise summary jurisdiction). In sum, unlike the fraudulent conveyance claim in Wellness’s alter ego claim alleges that assets within Sharif ’s actual or constructive possession belong to his estate. And unlike the breach of contract and tort claims at issue in Northern Pipe and Stern, Cite as: 575 U. S. (20) 9 ROBERTS, C. J., dissenting Wellness’s claim stems not from any independent source of law but “from the bankruptcy itself.” Stern, 564 U. S., at (slip op., at 34). Provided that no third party asserted a substantial adverse claim to the trust assets, Wellness’s claim therefore falls within the narrow historical excep­ tion that permits a non-Article III adjudicator in certain bankruptcy proceedings. I would reverse the contrary holding by the Court of Appeals and end our inquiry there, rather than deciding a broader question that may not be necessary to the disposition of this case. II The Court “expresses no view” on whether Wellness’s claim was a Stern claim. Ante, at 8, n. 7. Instead, the Court concludes that the Bankruptcy Court had constitu­ tional authority to enter final judgment on Wellness’s claim either way. The majority rests its decision on Sha­ rif ’s purported consent to the Bankruptcy Court’s adjudi­ cation. But Sharif has no authority to compromise the structural separation of powers or agree to an exercise of judicial power outside Article III. His consent therefore cannot cure a constitutional violation. A “[I]f there is a principle in our Constitution more sacred than another,” James Madison said on the floor of the First Congress, “it is that which separates the Legisla­ tive, Executive, and Judicial powers.” 1 Annals of Cong. 581 (1789). A strong word, “sacred.” Madison was the principal drafter of the Constitution, and he knew what he was talking about. By diffusing federal powers among three different branches, and by protecting each branch against incursions from the others, the Framers devised a structure of government that promotes both liberty and accountability. See Bond v. United States, 564 U. S. – (2011) (slip op., at 10–11); Free Enterprise Fund v. 10 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting Public Company Accounting Oversight Bd., 561 U.S. 477, 497–501 (); Youngstown Sheet & Tube (19) (Jackson, J., concurring). Preserving the separation of powers is one of this Court’s most weighty responsibilities. In performing that duty, we have not hesitated to enforce the Constitution’s mandate “that one branch of the Government may not intrude upon the central prerogatives of another.” v. United States, We have accordingly invalidated executive actions that encroach upon the power of the Legislature, see NLRB v. Noel Canning, 573 U. S. (2014); Youngstown, ; legislative actions that invade the province of the Execu­ tive, see ; Bowsher v. Synar, 478 U.S. 714 ; Chadha, ; 272 U.S. ; and actions by either branch that trench upon the territory of the Judiciary, see Stern, 564 U. S. ; ; United ; United (1872); Hayburn’s Case, In these and other cases, we have emphasized that the values of liberty and accountability protected by the sepa­ ration of powers belong not to any branch of the Govern­ ment but to the Nation as a whole. See Bowsher, 478 U.S., at 722. A branch’s consent to a diminution of its constitutional powers therefore does not mitigate the harm or cure the wrong. “Liberty is always at stake when one or more of the branches seek to transgress the separa­ tion of powers.” Clinton v. City of New York, 4 U.S. 417, 450 (1998) (KENNEDY, J., concurring). When the Executive and the Legislature agreed to bypass the Article I, requirements of bicameralism and presentment by creating a Presidential -item veto—a very pragmatic proposal—the Court held that the arrangement violated the Constitution notwithstanding the voluntary participa­ Cite as: 575 U. S. (20) 11 ROBERTS, C. J., dissenting tion of both branches. Likewise, the Court struck down a one-House “legislative veto” that violated Article I, even though Presidents and Congresses had agreed to include similar provisions in hundreds of laws for more than 50 years. Chadha, 462 U.S., at –945. In neither of these cases did the branches’ willing em­ brace of a separation of powers violation weaken the Court’s scrutiny. To the contrary, the branches’ “enthusi­ asm” for the offending arrangements “ ‘sharpened rather than blunted’ our review.” Noel Canning, 573 U. S., at (SCALIA, J., concurring in judgment) (slip op., at 4) (quot­ ing Chadha, 462 U. S, at ). In short, because the structural provisions of the Constitution protect liberty and not just government entities, “the separation of pow­ ers does not depend on whether ‘the encroached-upon branch approves the encroachment.’ ” 561 U.S., at 497 (quoting New 182 (1992)). B If a branch of the Federal Government may not consent to a violation of the separation of powers, surely a private litigant may not do so. Just as a branch of Government may not consent away the individual liberty interest protected by the separation of powers, so too an individual may not consent away the institutional interest protected by the separation of powers. To be sure, a private litigant may consensually relinquish individual constitutional rights. A federal criminal defendant, for example, may knowingly and voluntarily waive his Sixth Amendment right to a jury trial by pleading guilty to a charged offense. See But that same defendant may not agree to stand trial on fed­ eral charges before a state court, a foreign court, or a moot court, because those courts have no constitutional author­ 12 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting ity to exercise judicial power over his case, and he has no power to confer it. A “lack of federal jurisdiction cannot be waived or be overcome by an agreement of the parties.” As the majority recognizes, the Court’s most extensive discussion of litigant consent in a separation of powers case occurred in Commodity Futures Trading Comm’n v. Schor, There the Court held that Article III confers both a “personal right” that can be waived through consent and a structural component that “safeguards the role of the Judicial Branch in our tripar­ tite system.” “To the extent that this structural principle is implicated in a given case, the parties cannot by consent cure the constitutional difficulty for the same reason that the parties by consent cannot confer on federal courts subject-matter jurisdiction beyond the limitations imposed by Article III.” at Thus, when “Article III limitations are at issue, notions of consent and waiver cannot be dispositive because the limitations serve institutional interests that the parties cannot be expected to protect.” Schor’s holding that a private litigant can consent to an Article III violation that affects only his “personal right” has been vigorously contested. See (Brennan, J., dissenting) (“Because the individual and structural interests served by Article III are coextensive, I do not believe that a litigant may ever waive his right to an Article III tribunal where one is constitutionally re­ quired”); (SCALIA, J., concurring in part and concurring in judgment). But whatever the merits of that position, nobody disputes that Schor forbids a litigant from consenting to a constitutional violation when the structural component of Article III “is implicated.” 478 U.S., at Thus, the key inquiry in this case—as the majority puts it—is “whether allowing bankruptcy courts to decide Stern claims by consent would Cite as: 575 U. S. (20) 13 ROBERTS, C. J., dissenting ‘impermissibly threaten the institutional integrity of the Judicial Branch.’ ” Ante, at 12 (quoting Schor, 478 U.S., ; alteration omitted). One need not search far to find the answer. In Stern, this Court applied the analysis from Schor to bankruptcy courts and concluded that they lack Article III authority to enter final judgments on matters now known as Stern claims. The Court noted that bankruptcy courts, unlike the administrative agency in Schor, were endowed by Congress with “substantive jurisdiction reaching any area of the corpus juris,” power to render final judgments en­ forceable without any action by Article III courts, and authority to adjudicate counterclaims entirely independ­ ent of the bankruptcy itself. 564 U. S., at – (slip op., at 25–29). The Court concluded that allowing Congress to bestow such authority on non-Article III courts would “compromise the integrity of the system of separated powers and the role of the Judiciary in that system.” at (slip op., at 38). If there was any room for doubt about the basis for its holding, the Court dispelled it by asking a question: “Is there really a threat to the separa­ tion of powers where Congress has conferred the judicial power outside Article III only over certain counterclaims in bankruptcy?” at (slip op., at 37). “The short but emphatic answer is yes.” In other words, allowing bankruptcy courts to decide Stern claims by consent would “impermissibly threaten the institutional integrity of the Judicial Branch.” Ante, at 12 (internal quotation marks and alteration omitted). It is little wonder that the Court of Appeals felt itself bound by Stern and Schor to hold that Sharif ’s consent could not cure the Stern violation. Other Courts of Appeals have adopted the same reading. See In re BP RE, L. P., ; The majority attempts to avoid this conclusion through 14 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting an imaginative reconstruction of Stern. As the majority sees it, Stern “turned on the fact that the litigant ‘did not truly consent to’ resolution of the claim” against him in the Bankruptcy Court. Ante, at (quoting 564 U. S., at (slip op., at 27)). That is not a proper reading of the decision. The constitutional analysis in Stern, spanning 22 pages, contained exactly one affirmative reference to the lack of consent. See That reference came amid a long list of factors distinguishing the proceeding in Stern from the proceedings in Schor and other “public rights” cases. 564 U. S., at – (slip op., at 27–29). Stern’s subsequent sentences made clear that the notions of con­ sent relied upon by the Court in Schor did not apply in bankruptcy because “creditors lack an alternative forum to the bankruptcy court in which to pursue their claims.” 564 U. S., at (slip op., at 28) (quoting n. 14). Put simply, the litigant in Stern did not consent because he could not consent given the nature of bankruptcy. There was an opinion in Stern that turned heavily on consent: the dissent. 564 U. S., at – (opinion of BREYER, J.) (slip op., at 12–14). The Stern majority re­ sponded to the dissent with a counterfactual: Even if consent were relevant to the analysis, that factor would not change the result because the litigant did not truly consent. at – (slip op., at 28–29). Moreover, Stern held that “it does not matter who” authorizes a bankruptcy judge to render final judgments on Stern claims, because the “constitutional bar remains.” at (slip op., at 36). That holding is incompatible with the majority’s conclusion today that two litigants can author­ ize a bankruptcy judge to render final judgments on Stern claims, despite the constitutional bar that remains. The majority also relies heavily on the supervision and control that Article III courts exercise over bankruptcy courts. Ante, at 12–. As the majority notes, court of Cite as: 575 U. S. (20) ROBERTS, C. J., dissenting appeals judges appoint bankruptcy judges, and bankruptcy judges receive cases only on referral from district courts (although every district court in the country has adopted a standing rule automatically referring all bankruptcy filings to bankruptcy judges, see 1 Collier on Bankruptcy ¶3.02[1], p. 3–26 (16th ed. 2014)). The problem is that Congress has also given bankruptcy courts authority to enter final judgments subject only to deferential appellate review, and Article III precludes those judgments when they involve Stern claims. The fact that Article III judges played a role in the Article III violation does not remedy the constitutional harm. We have already explained why. It is a fundamental principle that no branch of govern­ ment can delegate its constitutional functions to an actor who lacks authority to exercise those functions. See 472 (2001); (1936). Such delegations threaten liberty and thwart accountability by empowering entities that lack the struc­ tural protections the Framers carefully devised. See Department of Transportation v. Association of American Railroads, 575 U. S. – (20) (ALITO, J., con­ curring) (slip op., at 6–7); at – (THOMAS, J., concurring in judgment) (slip op., at 2–3); Mistretta v. United States, (SCALIA, J., dissenting). Article III judges have no constitutional authority to delegate the judicial power—the power to “render dispositive judgments”—to non-Article III judges, no matter how closely they control or supervise their work. 514 U.S., at (internal quotation marks omitted). In any event, the majority’s arguments about supervi­ sion and control are not new. They were considered and rejected in Stern. See 564 U. S., at (slip op., at 36) (“it does not matter who appointed the bankruptcy judge or authorized the judge to render final judgments”); see also 16 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting Northern Pipe, –86 ; The majority points to no differences between the bankruptcy proceeding in Stern and the bankruptcy proceeding here, except for Sharif ’s purported consent. The majority thus treats consent as “dispositive” in curing the structural separation of powers violation—precisely what Schor said consent could not 478 U.S., C Eager to change the subject from Stern, the majority devotes considerable attention to defending the authority of magistrate judges, who may conduct certain proceed­ ings with the consent of the parties under 28 U.S. C. No one here challenges the constitutionality of magistrate judges or disputes that they, like bankruptcy judges, may issue reports and recommendations that are reviewed de novo by Article III judges. The cases about magistrate judges cited by the majority therefore have little bearing on this case, because none of them involved a constitutional challenge to the entry of final judgment by a non-Article III actor. See (2003) (statutory challenge only); (challenge to a magistrate judge’s conduct of voir dire in a felony trial); The majority also points to 19th-century cases in which courts referred disputes to non-Article III referees, mas­ ters, or arbitrators. Ante, at 8. In those cases, however, it was the Article III court that ultimately entered final judgment. E.g., (1813) (“the Court was right in entering the judgment for the sums awarded”). Article III courts do refer matters to non-Article III actors for assistance from time to time. This Court does so regularly in original jurisdiction cases. See, e.g., Kansas v. Nebraska, 574 U. S. (20) Cite as: 575 U. S. (20) 17 ROBERTS, C. J., dissenting (slip op., at 1). But under the Constitution, the “ultimate responsibility for deciding” the case must remain with the Article III court. at (slip op., at 6) ). The concurrence’s comparison of bankruptcy judges to arbitrators is similarly inapt. Ante, at 1 (opinion of ALITO, J.). Arbitration is “a matter of contract” by which parties agree to resolve their disputes in a private forum. Rent-A- Center, West, Such an arrangement does not implicate Article III any more than does an agreement between two business part­ ners to submit a difference of opinion to a mutually trusted friend. Arbitration agreements, like most private con­ tracts, can be enforced in court. And Congress, pursuant to its Commerce Clause power, has authorized district courts to enter judgments enforcing arbitration awards under certain circumstances. See 9 U.S. C. But this ordinary scheme of contract enforcement creates no consti­ tutional concern. As the concurrence acknowledges, only Article III judges—not arbitrators—may enter final judg­ ments enforcing arbitration awards. Ante, at 1. The discussion of magistrate judges, masters, arbitra­ tors, and the like fits with the majority’s focus on the supposedly dire consequences that would follow a decision that parties cannot consent to the final adjudication of Stern claims in bankruptcy courts. Of course, it “goes without saying” that practical considerations of efficiency and convenience cannot trump the structural protections of the Constitution. Stern, 564 U. S., at (slip op., at 36); see Perez, 575 U. S., at (THOMAS, J., concurring in judgment) (slip op., at 20) (“Even in the face of perceived necessity, the Constitution protects us from ourselves.”). And I find it hard to believe that the Framers in Philadel­ phia, who took great care to ensure that the Judiciary was “truly distinct” from the Legislature, would have been comforted to know that Congress’s incursion here could 18 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting “only be termed de minimis.” Ante, at 13 (quoting Schor, ). In any event, the majority overstates the consequences of enforcing the requirements of Article III in this case. As explained in Part I, Wellness’s claim may not be a Stern claim, in which case the bankruptcy statute would apply precisely as Congress wrote it. Even if Wellness’s claim were a Stern claim, the District Court would not need to start from scratch. As this Court held in Arkison, the District Court could treat the bankruptcy judge’s decision as a recommendation and enter judgment after performing de novo review. 573 U. S., at (slip op., at 4). In Stern, the Court cautioned that Congress “may no more lawfully chip away at the authority of the Judicial Branch than it may eliminate it entirely.” 564 U. S., at (slip op., at 37). The majority sees no reason to fret, however, so long as two private parties consent. Ante, at 14, n. 10. But such parties are unlikely to carefully weigh the long-term structural independence of the Article III judiciary against their own short-term priorities. Perhaps the majority’s acquiescence in this diminution of constitu­ tional authority will escape notice. Far more likely, how­ ever, it will amount to the kind of “blueprint for extensive expansion of the legislative power” that we have resisted in the past. ). The encroachment at issue here may seem benign enough. Bankruptcy judges are devoted professionals who strive to be fair to all sides, and litigants can be trusted to protect their own interests when deciding whether to consent. But the fact remains that Congress controls the salary and tenure of bankruptcy judges, and the Legisla­ ture’s present solicitude provides no guarantee of its fu­ ture restraint. See Glidden 534 (1962) Once Congress knows that Cite as: 575 U. S. (20) 19 ROBERTS, C. J., dissenting it can assign federal claims to judges outside Article III with the parties’ consent, nothing would limit its exercise of that power to bankruptcy. Congress may consider it advantageous to allow claims to be heard before judges subject to greater legislative control in any number of areas of federal concern. As for the requirement of con­ sent, Congress can find ways to “encourage” consent, say by requiring it as a condition of federal benefits. That has worked to expand Congress’s power before. See, e.g., College Savings 7 U.S. 666, (“Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take”); South Legislative designs of this kind would not displace the Article III judiciary overnight. But steady erosion of Article III authority, no less than a brazen usurpation, violates the constitutional separation of powers. In a Federal Government of limited powers, one branch’s loss is another branch’s gain, see so whether a branch aims to “arrogate power to itself ” or to “impair another in the performance of its constitutional duties,” the Constitution forbids the transgression all the same. 517 U.S., at As we have cautioned, “[s]light encroachments create new boundaries from which legions of power can seek new territory to capture.” Stern, 564 U. S., at (slip op., at 38) (internal quotation marks omitted). The Framers understood this danger. They warned that the Legislature would inevitably seek to draw greater power into its “impetuous vortex,” The Federalist No. 48, at 309 (J. Madison), and that “power over a man’s subsist­ ence amounts to a power over his will,” No. 79, at 472 (A. Hamilton) (emphasis deleted). In response, the Fram­ ers adopted the structural protections of Article III, “es­ 20 WELLNESS INT’L NETWORK, LTD. v. SHARIF ROBERTS, C. J., dissenting tablishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensi­ ble in the heat of interbranch conflict.” 514 U.S., at 239. As this Court once put it, invoking Frost, “Good fences make good neighbors.” Ultimately, however, the structural protections of Arti­ cle III are only as strong as this Court’s will to enforce them. In Madison’s words, the “great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” The Federalist No. 51, at 321–322 (J. Madison). The Court today decs to resist encroachment by the Legis­ lature. Instead it holds that a single federal judge, for reasons adequate to him, may assign away our hard-won constitutional birthright so long as two private parties agree. I hope I will be wrong about the consequences of this decision for the independence of the Judicial Branch. But for now, another literary passage comes to mind: It profits the Court nothing to give its soul for the whole world but to avoid Stern claims? I respectfully dissent. Cite as: 575 U. S. (20) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 13–935 WELLNESS INTERNATIONAL NETWORK, LIMITED, ET AL, PETITIONERS v.

Justice Thomas

second_dissenting

Wellness Int'l Network, Ltd. v. Sharif

2015-05-26

https://www.courtlistener.com/opinion/2804677/wellness-intl-network-ltd-v-sharif/

https://www.courtlistener.com/api/rest/v3/clusters/2804677/

2014-038

Like THE CHIEF JUSTICE, I would have remanded this case to the lower courts to determine, under the proper standard, whether Wellness’ alter-ego claim is a Stern claim. See Stern v. Marshall, 564 U. S. ___ (2011). I write separately to highlight a few questions touching on the consent issue that merit closer attention than either the Court or THE CHIEF JUSTICE gives them. I agree with THE CHIEF JUSTICE that individuals cannot consent to violations of the Constitution, but this principle has nothing to do with whose interest the violated provi- sion protects. Anytime the Federal Government acts in a manner inconsistent with the separation of powers, it acts in excess of its constitutional authority. That authority is carefully defined by the Constitution, and, except through Article V’s amendment process, that document does not permit individuals to bestow additional power upon the Government. The majority today authorizes non-Article III courts to adjudicate, with consent, claims that we have held to require an exercise of the judicial power based on its as- sessment that few “structural interests” are implicated by consent to the adjudication of Stern claims. See ante, at 7, 12. That reasoning is flawed. It matters not whether we think the particular violation threatens the structure of 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting our Government. Our duty is to enforce the Constitution as written, not as revised by private consent, innocuous or otherwise. Worse, amidst the tempest over whether “structural interests” are implicated when an individual consents to adjudication of Stern claims by a non-Article III court, both the majority and THE CHIEF JUSTICE fail to grapple with the antecedent question: whether a violation of the Constitution has actually occurred. That question is a difficult one, and the majority makes a grave mistake by skipping over it in its quest to answer the question whether consent can authorize a constitutional violation. Because I would resolve this case on narrower grounds, I need not decide that question here. I nevertheless write separately to highlight the complexity of the issues the majority simply brushes past. I A “The principle, that [the Federal Government] can exercise only the powers granted to it, . . . is now univer- sally admitted.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). A corollary to this principle is that each branch of the Government is limited to the exercise of those powers granted to it. Every violation of the separa- tion of powers thus involves an exercise of power in excess of the Constitution. And because the only authorities capable of granting power are the Constitution itself, and the people acting through the amendment process, indi- vidual consent cannot authorize the Government to exceed constitutional boundaries. This does not mean, however, that consent is invariably irrelevant to the constitutional inquiry. Although it may not authorize a constitutional violation, consent may prevent one from occurring in the first place. This concept is perhaps best understood with the example on which the majority and THE CHIEF JUSTICE both rely: the right to a Cite as: 575 U. S. ____ (2015) 3 THOMAS, J., dissenting jury trial. Ante, at 9 (majority opinion); ante, at 11 (ROBERTS, C. J., dissenting).1 Although the Government incurably contravenes the Constitution when it acts in violation of the jury trial right, our precedents permit the Government to convict a criminal defendant without a jury trial when he waives that right. See Brady v. United States, 397 U.S. 742, 748 (1970). The defendant’s waiver is thus a form of consent that lifts a limitation on govern- ment action by satisfying its terms—that is, the right is exercised and honored, not disregarded. See Patton v. United States, 281 U.S. 276, 296–298 (1930), abrogated on other grounds by Williams v. Florida, 399 U.S. 78 (1970). Provided the Government otherwise acts within its pow- ers, there is no constitutional violation. B Consent to the adjudication of Stern claims by bank- ruptcy courts is a far more complex matter than waiver of a jury trial. Two potential violations of the separation of powers occur whenever bankruptcy courts adjudicate Stern claims. First, the bankruptcy courts purport to exercise power that the Constitution vests exclusively in the judiciary, even though they are not Article III courts because bankruptcy judges do not enjoy the tenure and salary protections required by Article III. See Art. III, §1. Second, the bankruptcy courts act pursuant to statutory authorization that is itself invalid. For even when acting pursuant to an enumerated power, such as the bankruptcy —————— 1 There is some dispute whether the guarantee of a jury trial protects an individual right, a structural right, or both, raising serious questions about how it should be treated under Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986). My view, which does not turn on such taxonomies, leaves no doubt: It is a “fundamental reservation of power in our constitutional structure,” Blakely v. Washington, 542 U.S. 296, 306 (2004), meaning its violation may not be authorized by the consent of the individual. 4 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting power, Congress exceeds its authority when it purports to authorize a person or entity to perform a function that requires the exercise of a power vested elsewhere by the Constitution. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472 (2001). Rather than attempt to grapple with these problems, the majority seizes on some statements from Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833 (1986), to resolve the difficult constitutional issue before us. See ante, at 9–12. But to the extent Schor suggests that indi- vidual consent could authorize non-Article III courts to exercise the judicial power, 478 U.S., at 850–851, it was wrongly decided and should be abandoned. Consent to adjudication by non-Article III judges may waive whatever individual right to impartial adjudication Article III im- plies, thereby lifting that affirmative barrier on Govern- ment action. But non-Article III courts must still act within the bounds of their constitutional authority. That is, they must act through a power properly delegated to the Federal Government and not vested by the Constitu- tion in a different governmental actor. Because the judi- cial power is vested exclusively in Article III courts, non- Article III courts may not exercise it. Schor’s justification for authorizing such a transgression was that it judged the “practical effect [the allocation would] have on the constitutionally assigned role of the federal judiciary” not to be too great. Id., at 851. But we “can[not] preserve a system of separation of powers on the basis of such intuitive judgments regarding ‘practical effects.’ ” Granfinanciera, S. A. v. Nordberg, 492 U.S. 33, 70 (1989) (SCALIA, J., concurring in part and concurring in judgment). Put more starkly, “[t]o uphold” a violation of the Constitution because one perceives “the infraction assailed [a]s unimportant when compared with similar but more serious infractions which might be conceived . . . is not to interpret that instrument, but to disregard it.” Cite as: 575 U. S. ____ (2015) 5 THOMAS, J., dissenting Patton, supra, at 292. Our Constitution is not a matter of convenience, to be invoked when we feel uncomfortable with some Government action and cast aside when we do not. See Perez v. Mortgage Bankers Assn., ante, at 5 (THOMAS, J., concurring in judgment). II Properly understood, then, the answer to the consent question in this case depends on whether bankruptcy courts act within the bounds of their constitutional au- thority when they adjudicate Stern claims with the con- sent of the parties. In order to answer that question, we must consider what form of governmental power that type of adjudication requires and whether bankruptcy courts are qualified to exercise that power. Department of Transportation v. Association of American Railroads, ante, at 24 (THOMAS, J., concurring in judgment). Many Government functions “may be performed by two or more branches without either exceeding its enumerated powers under the Constitution.” Ante, at 4. Certain core functions, however, demand the exercise of legislative, executive, or judicial power, and their allocation is con- trolled by the Vesting Clauses contained in the first three articles of the Constitution. Ibid. We have already held that adjudicating Stern claims, at least without consent of the parties, requires an exercise of the judicial power vested exclusively in Article III courts. Stern, 564 U. S., at ___–___ (slip op., at 28–29). The difficult question pre- sented by this case, which the Court glosses over, is whether the parties’ consent somehow transforms the nature of the power exercised. A As the concepts were understood at the time of the 6 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting founding, the legislative, executive, and judicial powers played different roles in the resolution of cases and con- troversies. In this context, the judicial power is the power “to determine all differences according to the established law”; the legislative power is the power to make that “established law”; and the executive power is the power “to back and support the sentence, and to give it due execu- tion.” J. Locke, Second Treatise of Civil Government §§124–126, pp. 62–63 (J. Gough ed. 1947) (Locke); see also Wayman v. Southard, 10 Wheat. 1, 46 (1825). It should be immediately apparent that consent does not transform the adjudication of Stern claims into a function that requires the exercise of legislative or executive power. Parties by their consent do not transform the function of adjudicating controversies into the functions of creating rules or enforcing judgments. The more difficult question is whether consent somehow eliminates the need for an exercise of the judicial power. Our precedents reveal that the resolution of certain cases or controversies requires the exercise of that power, but that others “may or may not” be brought “within the cog- nizance of [Article III courts], as [Congress] deem[s] proper.” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 284 (1856). The distinction generally has to do with the types of rights at issue. Disposition of private rights to life, liberty, and property falls within the core of the judicial power, whereas disposition of public rights does not. From that core of the judicial power, we have identified two narrow historical exceptions. Those excep- tions, along with the treatment of cases or controversies not falling within that core, provide useful guidance for understanding whether bankruptcy courts’ adjudication of Stern claims with the consent of the parties requires the exercise of Article III judicial power. Cite as: 575 U. S. ____ (2015) 7 THOMAS, J., dissenting 1 Under our precedents, the three categories of cases that may be adjudicated by Article III courts but that do not demand the exercise of the judicial power are those arising in the territories, those arising in the Armed Forces, and those involving public-rights disputes. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 63–67 (1982) (plurality opinion). The first two represent unique historical exceptions that tell us little about the overall scope of the judicial power. From an early date, this Court has long upheld laws au- thorizing the adjudication of cases arising in the territo- ries in non-Article III “territorial courts” on the ground that such courts exercise power “conferred by Congress, in the execution of those general powers which [Congress] possesses over the territories of the United States.” Amer- ican Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828) (Canter).2 And the Court has upheld laws authorizing the —————— 2 Chief Justice Marshall’s explanation in Canter has come under at- tack on the ground that it fails to clarify the precise constitutional status of the power exercised by the territorial courts. Lawson, Territo- rial Governments and the Limits of Formalism, 78 Cal. L. Rev. 853, 892 (1990) (criticizing it as “fatuous” dictum). On the one hand, some early evidence suggests that the courts were thought to be dealing primarily with local matters that lie beyond federal judicial cognizance. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643, 706–711 (2004). Yet Canter involved a controversy indisputably capable of adjudication by Article III courts, because it both arose in admiralty and fell within the Su- preme Court’s appellate jurisdiction. Pfander, supra, at 713–714, n. 314. The best explanation for this apparent tension is that territorial courts adjudicate matters that Congress may or may not assign to Article III courts, as it wishes. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 575–576 (2007). To recognize Congress’ discretion requires no distortion of the meaning of judicial power because Chief Justice Marshall’s reasoning has nothing to do with the intrinsic qualities of the adjudication itself—e.g., whether it involves “the stuff of the traditional actions at common law tried by the 8 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting adjudication of cases arising in the Armed Forces in non- Article III courts-martial, inferring from a constellation of constitutional provisions that Congress has the power to provide for the adjudication of disputes among the Armed Forces it creates and that Article III extends only to civil- ian judicial power. Dynes v. Hoover, 20 How. 65, 78–79 (1858). Whatever their historical validity, these prece- dents exempt cases arising in the territories and in the land and naval forces from Article III because of other provisions of the Constitution, not because of the defini- tion of judicial power in Article III itself. See Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 576 (2007) (noting that both exceptions enjoy “special textual rationales that d[o] not spill over into other areas”). The third category consists of so-called “public rights” cases. Unlike the other two categories, which reflect carve-outs from the core of the judicial power, this cate- gory describes cases outside of that core and therefore has more to tell us about the scope of the judicial power. The distinction between disputes involving “public rights” and those involving “private rights” is longstand- ing, but the contours of the “public rights” doctrine have been the source of much confusion and controversy. See generally Granfinanciera, 492 U.S., at 66–70 (opinion of SCALIA, J.) (tracing the evolution of the doctrine). Our cases attribute the doctrine to this Court’s mid-19th cen- tury decision, Murray’s Lessee, supra. In that case, the Court observed that there are certain cases addressing “public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which con- gress may or may not bring within the cognizance of the —————— courts of Westminster in 1789,” Stern v. Marshall, 564 U. S. ___, ___ (2011) (slip op., at 18) (internal quotation marks omitted). Cite as: 575 U. S. ____ (2015) 9 THOMAS, J., dissenting courts of the United States, as it may deem proper.” Id., at 284 (emphasis added). Historically, “public rights” were understood as “rights belonging to the people at large,” as distinguished from “the private unalienable rights of each individual.” Lans- ing v. Smith, 4 Wend. 9, 21 (N. Y. 1829) (Walworth, C.). This distinction is significant to our understanding of Article III, for while the legislative and executive branches may dispose of public rights at will—including through non-Article III adjudications—an exercise of the judicial power is required “when the government want[s] to act authoritatively upon core private rights that had vested in a particular individual.” Nelson, supra, at 569; see B&B Hardware, Inc. v. Hargis Industries, Inc., ante, at 11 (THOMAS, J., dissenting). The distinction was well known at the time of the found- ing. In the tradition of John Locke, William Blackstone in his Commentaries identified the private rights to life, liberty, and property as the three “absolute” rights—so called because they “appertain[ed] and belong[ed] to par- ticular men . . . merely as individuals,” not “to them as members of society [or] standing in various relations to each other”—that is, not dependent upon the will of the government. 1 W. Blackstone, Commentaries on the Laws of England 119 (1765) (Commentaries); see also Nelson, supra, at 567.3 Public rights, by contrast, belonged to “the whole community, considered as a community, in its social aggregate capacity.” 4 Commentaries 5 (1769); see also Nelson, supra, at 567. As the modern doctrine of the —————— 3 The protection of private rights in the Anglo-American tradition goes back to at least Magna Carta. The original 1215 charter is replete with restrictions on the King’s ability to proceed against private rights, including most notably the provision that “[n]o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, . . . except by the lawful judgment of his peers and by the law of the land.” A. Howard, Magna Carta: Text and Commentary 43 (1964). 10 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting separation of powers emerged, “the courts became identi- fied with the enforcement of private right, and administra- tive agencies with the execution of public policy.” Jaffe, The Right to Judicial Review I, 71 Harv. L. Rev. 401, 413 (1958). The Founders carried this idea forward into the Vesting Clauses of our Constitution. Those Clauses were under- stood to play a role in ensuring that the federal courts alone could act to deprive individuals of private rights because the power to act conclusively against those rights was the core of the judicial power. As one early treatise explained, the judiciary is “that department of the gov- ernment to whom the protection of the rights of the indi- vidual is by the constitution especially confided.” 1 St. George Tucker, Blackstone’s Commentaries, App. 357 (1803). If “public rights” were not thought to fall within the core of the judicial power, then that could explain why Congress would be able to perform or authorize non- Article III adjudications of public rights without trans- gressing Article III’s Vesting Clause. Nineteenth-century American jurisprudence confirms that an exercise of the judicial power was thought to be necessary for the disposition of private, but not public, rights.4 See B&B Hardware, ante, at 12. The treatment of —————— 4 Contemporary state-court decisions provide even more explication of the distinction between public and private rights, and many expressly tie the distinction to the separation of powers. See, e.g., Newland v. Marsh, 19 Ill. 376, 383 (1857) (“The legislative power . . . cannot di- rectly reach the property or vested rights of the citizen, by providing for their forfeiture or transfer to another, without trial and judgment in the courts; for to do so, would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legisla- ture”); see also Gaines v. Gaines, 48 Ky. 295, 301 (1848) (describing the judiciary as “the tribunal appointed by the Constitution and the law, for the ascertainment of private rights and the redress of private wrongs”); State ex rel. Atty. Gen. v. Hawkins, 44 Ohio St. 98, 109, 5 N.E. 228, 232 (1886) (“[P]ower to hear and determine rights of property and Cite as: 575 U. S. ____ (2015) 11 THOMAS, J., dissenting land patents illustrates the point well: Although Congress could authorize executive agencies to dispose of public rights in land—often by means of adjudicating a claim- ant’s qualifications for a land grant under a statute—the United States had to go to the courts if it wished to revoke a patent. See generally Nelson, 107 Colum. L. Rev., at 577–578 (discussing land patents). That differential treatment reflected the fact that, once “legal title passed out of the United States,” the patent “[u]ndoubtedly” constituted “a vested right” and consequently could “only be divested according to law.” Johnson v. Towsley, 13 Wall. 72, 84–85 (1871). By contrast, a party who sought to protect only a “public right” in the land had no such vested right and could not invoke the intervention of Article III courts. See Smelting Co. v. Kemp, 104 U.S. 636, 647 (1882) (“It does not lie in the mouth of a stranger to the title to complain of the act of the government with respect to it”); see also Bagnell v. Broderick, 13 Pet. 436, 450 (1839) (refusing to examine the propriety of a land patent on the ground that “Congress has the sole power to declare the dignity and effect of titles emanating from the United States”). Over time, the line between public and private rights has blurred, along with the Court’s treatment of the judicial power. See B&B Hardware, ante, at 9–10, 12. The source of the confusion may be Murray’s Lessee—the putative source of the public rights doctrine itself. Dic- tum in the case muddles the distinction between private and public rights, and the decision is perhaps better read as an expression of the principle of sovereign im- munity. Granfinanciera, 492 U.S., at 68–69 (opinion of —————— of person between private parties is judicial, and can only be conferred on the courts”); see generally T. Cooley, Constitutional Limitations 175 (1868) (explaining that only the judicial power was thought capable of disposing of private rights). 12 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting SCALIA, J.).5 Some cases appear to have done just that, thus reading Murray’s Lessee to apply only in disputes arising between the Government and others. See, e.g., Crowell v. Benson, 285 U.S. 22, 50 (1932). Another strain of cases has confused the distinction between private and public rights, with some cases treat- ing public rights as the equivalent of private rights enti- tled to full judicial review, American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108 (1902), and others treating what appear to be private rights as public rights on which executive action could be conclusive, see, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401–404 (1940); see also B&B Hardware, ante, at 12 (observing that Sunshine Anthracite may reflect a unique historical exception for tax cases). Cf. Northern Pipeline, 458 U.S., at 84–85 (plurality opinion) (discussing other cases that appear to reflect the historical distinction between private rights and rights created by Congress). Perhaps this confusion explains why the Court has more recently expanded the concept of public rights to include any right “so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolu- tion with limited involvement by the Article III judici- ary.” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 593–594 (1985). A return to the —————— 5 Another potential explanation is that Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856), recognized yet another special exception to Article III’s allocation of judicial power, applicable whenever the Government exercises its power of taxation. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 588– 589 (2007); see also B&B Hardware, Inc. v. Hargis Industries, Inc., ante, at 12 (THOMAS, J., dissenting) (discussing other decisions that appear to rest on this exception). To the extent that Murray’s Lessee purported to recognize such an exception, how-ever, it did so only in dictum after noting that the statute provided a mechanism for judicial review of the accounting decision on which the distress warrant was based. 18 How., at 280–281. Cite as: 575 U. S. ____ (2015) 13 THOMAS, J., dissenting historical understanding of “public rights,” however, would lead to the conclusion that the inalienable core of the judicial power vested by Article III in the federal courts is the power to adjudicate private rights disputes. 2 Although Congress did not enact a permanent federal bankruptcy law until the late 19th century, it has as- signed the adjudication of certain bankruptcy disputes to non-Article III actors since as early as 1800. Plank, Why Bankruptcy Judges Need Not and Should Not Be Article III Judges, 72 Am. Bankr. L. J. 567, 608 (1998) (describing the bankruptcy powers vested by Congress in non-Article III judges). Modern bankruptcy courts, however, adjudi- cate a far broader array of disputes than their earliest historical counterparts. And this Court has remained carefully noncommittal about the source of their authority to do so. See Northern Pipeline, 458 U.S., at 71 (plurality opinion). Applying the historical categories of cases discussed above, one can understand why. Bankruptcy courts clearly do not qualify as territorial courts or courts-martial, but they are not an easy fit in the “public rights” category, either. No doubt certain aspects of bankruptcy involve rights lying outside the core of the judicial power. The most obvious of these is the right to discharge, which a party may obtain if he satisfies certain statutory criteria. Ibid. Discharge is not itself a private right, but, together with the claims allowance process that precedes it, it can act conclusively on the core private rights of the debtor’s creditors. We have nevertheless implicitly recognized that the claims allowance process may proceed in a bankruptcy court, as can any matter that would necessarily be re- solved by that process, even one that affects core private rights. Stern, 564 U. S., at ___–___ (slip op., at 30–31). For this reason, bankruptcy courts and their prede- 14 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting cessors more likely enjoy a unique, textually based excep- tion, much like territorial courts and courts-martial do. See id., at ___ (SCALIA, J., concurring) (slip op., at 2). That is, Article I’s Bankruptcy Clause serves to carve cases and controversies traditionally subject to resolution by bankruptcy commissioners out of Article III, giving Congress the discretion, within those historical bounda- ries, to provide for their resolution outside of Article III courts. 3 Because Stern claims by definition fall outside of the historical boundaries of the bankruptcy carve-out, they are subject to Article III. This means that, if their adjudica- tion requires the exercise of the judicial power, then only Article III courts may perform it. Although Stern claims indisputably involve private rights, the “public rights” doctrine suggests a way in which party consent may transform the function of adjudi- cating Stern claims into one that does not require the exercise of the judicial power. The premise of the “public rights” doctrine, as described above, is not that public rights affirmatively require adjudication by some other governmental power, but that the Government has a freer hand when private rights are not at issue. Accordingly, this premise may not require the presence of a public right at all, but may apply equally to any situation in which private rights are not asserted. Party consent, in turn, may have the effect of lifting that “private rights” bar, much in the way that waiver lifts the bar imposed by the right to a jury trial. Individuals may dispose of their own private rights freely, without judicial intervention. A party who consents to adjudication of a Stern claim by a bankruptcy court is merely making a conditional surrender of whatever private right he has on the line, contingent on some future event—namely, that Cite as: 575 U. S. ____ (2015) 15 THOMAS, J., dissenting the bankruptcy court rules against him. Indeed, it is on this logic that the law has long encouraged and permitted private settlement of disputes, including through the action of an arbitrator not vested with the judicial power. See ante, at 1 (ALITO, J., concurring in part and concurring in judgment); T. Cooley, Constitutional Limitations 399 (1868). Perhaps for this reason, decisions discussing the relationship between private rights and the judicial power have emphasized the “involuntary divestiture” of a private right. Newland v. Marsh, 19 Ill. 376, 382–383 (1857) (emphasis added). But all of this does not necessarily mean that the major- ity has wound up in the right place by the wrong path. Even if consent could lift the private-rights barrier to non- judicial Government action, it would not necessarily follow that consent removes the Stern adjudication from the core of the judicial power. There may be other aspects of the adjudication that demand the exercise of the judicial power, such as entry of a final judgment enforceable with- out any further action by an Article III court. We have recognized that judgments entered by Article III courts bear unique qualities that spring from the exercise of the judicial power, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–219 (1995), and it may be that the entry of a final judgment bearing these qualities—irrespective of the subject matter of the dispute—is a quintessential judicial function. See ante, at 16–17 (ROBERTS, C. J., dissenting). See generally Northern Pipeline, supra, at 85–86, and n. 38 (plurality opinion) (distinguishing the agency orders at issue in Crowell from bankruptcy court orders on this ground). As Thomas Cooley explained in his influential treatise, “If the judges should sit to hear . . . controversies [beyond their cognizance], they would not sit as a court; at the most they would be arbitrators only, and their . . . decision could not be binding as a judgment, but only as 16 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting an award.” Cooley, supra, at 399.6 Ultimately, this case implicates difficult questions about the nature of bankruptcy procedure, judicial power, and remedies. In particular, if we were to determine that current practice accords bankruptcy court judgments a feature that demands the exercise of the judicial power, would that mean that all bankruptcy judgments resolving Stern claims are void, or only that courts may not give effect to that single feature that triggers Article III? The parties have briefed none of these issues, so I do not re- solve them. But the number and magnitude of these important questions—questions implicated by thousands of bankruptcy and magistrate judge decisions each year— merit closer attention than the majority has given them. —————— 6 Numerous 19th-century State Supreme Courts held unconstitutional laws authorizing individuals to consent to have their cases heard by an individual not qualified as a judge under provisions of State Consti- tutions similar to Article III, §1. See, e.g., Winchester v. Ayres, 4 Iowa 104 (1853); Haverly Invincible Mining Co. v. Howcutt, 6 Colo. 574, 575– 576 (1883); Ex parte Alabama State Bar Assn., 92 Ala. 113, 8 So. 768 (1891); see also Cooley, Constitutional Limitations, at 399. Acknowl- edging the similarity between the practices under review and the legitimate practice of private arbitration, many of these decisions premised their finding of unconstitutionality on the issuance of a judgment or other writ that only judges may issue. See, e.g., Bishop v. Nelson, 83 Ill. 601 (1876) (per curiam) (“This was not an arbitration . . . but it was an attempt to confer upon [Mr. Wood] the power of a judge, to decide the pending case, and he did decide it, the court carrying out his decision by entering the judgment he had reached, and not [its] own judgment”); Van Slyke v. Trempealeau Cty. Farmers’ Mut. Fire Ins. Co., 39 Wis. 390, 393 (1876) (“We cannot look into the bill of exceptions or consider the order denying a new trial, because both are unofficial and devoid of judicial authority”); see also id., at 395–396 (tracing this rule back to English understandings of judicial power). These decisions treat the rule as a corollary to the rule that parties may not, by consent, confer jurisdiction. See, e.g., Higby v. Ayres, 14 Kan. 331, 334 (1875); Hoagland v. Creed, 81 Ill. 506, 507–508 (1876); see also Cooley, supra, at 399. Cite as: 575 U. S. ____ (2015) 17 THOMAS, J., dissenting B Even assuming we were to decide that adjudication of Stern claims with the consent of the parties does not re- quire the exercise of the judicial power, that decision would not end the constitutional inquiry. As instrumen- talities of the Federal Government, the bankruptcy courts must act pursuant to some constitutional grant of author- ity. Even if the functions bankruptcy courts perform do not require an exercise of legislative, executive, or judicial power, we would need to identify the source of Congress’ authority to establish them and to authorize them to act. The historical carve-outs for territorial courts and courts-martial might provide some guidance. The Court has anchored Congress’ authority to create territorial courts in “the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, re- specting the territory belonging to the United States.” Canter, 1 Pet., at 546. And it has anchored Congress’ authority to create courts-martial in Congress’ Article I powers concerning the Army and Navy, understood along- side the Sixth Amendment’s exception of “ ‘cases arising in the land or naval forces,’ ” from the grand jury require- ment, and Article II’s requirement that the President serve as commander in chief. Dynes, 20 How., at 78–79. Although our cases examining the constitutionality of statutes allocating the power to the bankruptcy courts have not considered the source of Congress’ authority to establish them, the obvious textual basis is the fourth clause of Article I, §8, which empowers Congress to “estab- lish . . . uniform Laws on the subject of Bankruptcies throughout the United States.”7 But as with the other two —————— 7 In Northern Pipeline, the plurality rejected the argument that “Con- gress’ constitutional authority to establish ‘uniform Laws on the subject of Bankruptcies throughout the United States’ carries with it an 18 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting historical carve-outs, Congress’ power to establish tribu- nals within that grant is informed by historical under- standings of the bankruptcy power.8 We have suggested that, under this historical understanding, Congress has the power to establish bankruptcy courts that exercise jurisdiction akin to that of bankruptcy commissioners in England, subject to review traditionally had in England. Ante, at 3–4 (ROBERTS, C. J., dissenting). Although Stern claims, by definition, lie outside those historical bounda- ries, a historical practice of allowing broader adjudication by bankruptcy commissioners acting with the consent of the parties could alter the analysis. The parties once again do not brief these questions, but they merit closer attention by this Court. * * * Whether parties may consent to bankruptcy court adju- dication of Stern claims is a difficult constitutional ques- tion. It turns on issues that are not adequately considered by the Court or briefed by the parties. And it cannot—and should not—be resolved through a cursory reading of Schor, which itself is hardly a model of careful constitu- tional interpretation. For these reasons, I would resolve —————— inherent power to establish legislative courts capable of adjudicating ‘bankruptcy-related controversies.’ ” Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 72 (1982) (plurality opinion) (citation omitted). In that context, however, it was considering whether Article III imposes limits on Congress’ bankruptcy power, id., at 73, which is a distinct question from whether Congress has the power to establish bankruptcy courts as an antecedent matter, leaving aside any Article III limitations. 8 I would be wary of concluding that every grant of lawmaking au- thority to Congress includes the power to establish “legislative courts” as part of its legislative scheme. Some have suggested that Congress’ authority to establish tribunals pursuant to substantive grants of authority is informed and limited by its Article I power to “constitute Tribunals inferior to the supreme Court,” U. S. Const., Art. I, §8 cl. 9. See Pfander, 118 Harv. L. Rev., at 671–697. Cite as: 575 U. S. ____ (2015) 19 THOMAS, J., dissenting the case on the narrow grounds set forth in Part I of THE CHIEF JUSTICE’s opinion. I respectfully dissent.

Like THE CHIEF JUSTICE, I would have remanded this case to the lower courts to determine, under the proper standard, whether Wellness’ alter-ego claim is a Stern claim. See Stern v. Marshall, 564 U. S. (2011). I write separately to highlight a few questions touching on the consent issue that merit closer attention than either the Court or THE CHIEF JUSTICE gives them. I agree with THE CHIEF JUSTICE that individuals cannot consent to violations of the Constitution, but this principle has nothing to do with whose interest the violated provi- sion protects. Anytime the Federal Government acts in a manner inconsistent with the separation of s, it acts in excess of its constitutional authority. That authority is carefully defined by the Constitution, and, except through Article V’s amendment process, that document does not permit individuals to bestow additional upon the Government. The majority today authorizes non-Article III courts to adjudicate, with consent, claims that we have held to require an exercise of the judicial based on its as- sessment that few “structural interests” are implicated by consent to the adjudication of Stern claims. See ante, at 7, 12. That reasoning is flawed. It matters not whether we think the particular violation threatens the structure of 2 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting our Government. Our duty is to enforce the Constitution as written, not as revised by private consent, innocuous or otherwise. Worse, amidst the tempest over whether “structural interests” are implicated when an individual consents to adjudication of Stern claims by a non-Article III court, both the majority and THE CHIEF JUSTICE fail to grapple with the antecedent question: whether a violation of the Constitution has actually occurred. That question is a difficult one, and the majority makes a grave mistake by skipping over it in its quest to answer the question whether consent can authorize a constitutional violation. Because I would resolve this case on narrower grounds, I need not decide that question here. I nevertheless write separately to highlight the complexity of the issues the majority simply brushes past. I A “The principle, that [the Federal Government] can exercise only the s granted to it, is now univer- sally admitted.” 405 (1819). A corollary to this principle is that each branch of the Government is limited to the exercise of those s granted to it. Every violation of the separa- tion of s thus involves an exercise of in excess of the Constitution. And because the only authorities capable of granting are the Constitution itself, and the people acting through the amendment process, indi- vidual consent cannot authorize the Government to exceed constitutional boundaries. This does not mean, however, that consent is invariably irrelevant to the constitutional inquiry. Although it may not authorize a constitutional violation, consent may prevent one from occurring in the first place. This concept is perhaps best understood with the example on which the majority and THE CHIEF JUSTICE both rely: the right to a Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting jury trial. Ante, at 9 (majority opinion); ante, at 11 (ROBERTS, C. J., dissenting).1 Although the Government incurably contravenes the Constitution when it acts in violation of the jury trial right, our precedents permit the Government to convict a criminal defendant without a jury trial when he waives that right. See The defendant’s waiver is thus a form of consent that lifts a limitation on govern- ment action by satisfying its terms—that is, the right is exercised and honored, not disregarded. See v. United States, abrogated on other grounds by Provided the Government otherwise acts within its pow- ers, there is no constitutional violation. B Consent to the adjudication of Stern claims by bank- ruptcy courts is a far more complex matter than waiver of a jury trial. Two potential violations of the separation of s occur whenever bankruptcy courts adjudicate Stern claims. First, the bankruptcy courts purport to exercise that the Constitution vests exclusively in the judiciary, even though they are not Article III courts because bankruptcy judges do not enjoy the tenure and salary protections required by Article III. See Art. III, Second, the bankruptcy courts act pursuant to statutory authorization that is itself invalid. For even when acting pursuant to an enumerated such as the bankruptcy —————— 1 There is some dispute whether the guarantee of a jury trial protects an individual right, a structural right, or both, raising serious questions about how it should be treated under Commodity Futures Trading My view, which does not turn on such taxonomies, leaves no doubt: It is a “fundamental reservation of in our constitutional structure,” Blakely v. Washington, 542 U.S. 296, 306 (2004), meaning its violation may not be authorized by the consent of the individual. 4 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting Congress exceeds its authority when it purports to authorize a person or entity to perform a function that requires the exercise of a vested elsewhere by the Constitution. See Rather than attempt to grapple with these problems, the majority seizes on some statements from Commodity Futures Trading to resolve the difficult constitutional issue before us. See ante, at 9–12. But to the extent Schor suggests that indi- vidual consent could authorize non-Article III courts to exercise the judicial –851, it was wrongly decided and should be abandoned. Consent to adjudication by non-Article III judges may waive whatever individual right to impartial adjudication Article III im- plies, thereby lifting that affirmative barrier on Govern- ment action. But non-Article III courts must still act within the bounds of their constitutional authority. That is, they must act through a properly delegated to the Federal Government and not vested by the Constitu- tion in a different governmental actor. Because the judi- cial is vested exclusively in Article III courts, non- Article III courts may not exercise it. Schor’s justification for authorizing such a transgression was that it judged the “practical effect [the allocation would] have on the constitutionally assigned role of the federal judiciary” not to be too great. But we “can[not] preserve a system of separation of s on the basis of such intuitive judgments regarding ‘practical effects.’ ” S. 70 (1989) (SCALIA, J., concurring in part and concurring in judgment). Put more starkly, “[t]o uphold” a violation of the Constitution because one perceives “the infraction assailed [a]s unimportant when compared with similar but more serious infractions which might be conceived is not to interpret that instrument, but to disregard it.” Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting Our Constitution is not a matter of convenience, to be invoked when we feel uncomfortable with some Government action and cast aside when we do not. See Perez v. Mortgage Bankers Assn., ante, at 5 (THOMAS, J., concurring in judgment). II Properly understood, then, the answer to the consent question in this case depends on whether bankruptcy courts act within the bounds of their constitutional au- thority when they adjudicate Stern claims with the con- sent of the parties. In order to answer that question, we must consider what form of governmental that type of adjudication requires and whether bankruptcy courts are qualified to exercise that Department of Transportation v. Association of American Railroads, ante, at 24 (THOMAS, J., concurring in judgment). Many Government functions “may be performed by two or more branches without either exceeding its enumerated s under the Constitution.” Ante, at 4. Certain core functions, however, demand the exercise of legislative, executive, or judicial and their allocation is con- trolled by the Vesting Clauses contained in the first three articles of the Constitution. We have already held that adjudicating Stern claims, at least without consent of the parties, requires an exercise of the judicial vested exclusively in Article III courts. Stern, 564 U. S., at – (slip op., at 28–29). The difficult question pre- sented by this case, which the Court glosses over, is whether the parties’ consent somehow transforms the nature of the exercised. A As the concepts were understood at the time of the 6 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting founding, the legislative, executive, and judicial s played different roles in the resolution of cases and con- troversies. In this context, the judicial is the “to determine all differences according to the established law”; the legislative is the to make that “established law”; and the executive is the “to back and support the sentence, and to give it due execu- tion.” J. Locke, Second Treatise of Civil Government pp. 62–63 (J. Gough ed. 1947) (Locke); see also It should be immediately apparent that consent does not transform the adjudication of Stern claims into a function that requires the exercise of legislative or executive Parties by their consent do not transform the function of adjudicating controversies into the functions of creating rules or enforcing judgments. The more difficult question is whether consent somehow eliminates the need for an exercise of the judicial Our precedents reveal that the resolution of certain cases or controversies requires the exercise of that but that others “may or may not” be brought “within the cog- nizance of [Article III courts], as [Congress] deem[s] proper.” Murray’s v. Hoboken Land & Improvement Co., 18 How. 2, 284 The distinction generally has to do with the types of rights at issue. Disposition of private rights to life, liberty, and property falls within the core of the judicial whereas disposition of public rights does not. From that core of the judicial we have identified two narrow historical exceptions. Those excep- tions, along with the treatment of cases or controversies not falling within that core, provide useful guidance for understanding whether bankruptcy courts’ adjudication of Stern claims with the consent of the parties requires the exercise of Article III judicial Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting 1 Under our precedents, the three categories of cases that may be adjudicated by Article III courts but that do not demand the exercise of the judicial are those arising in the territories, those arising in the Armed Forces, and those involving public-rights disputes. Northern Constr. 63–67 The first two represent unique historical exceptions that tell us little about the overall scope of the judicial From an early date, this Court has long upheld laws au- thorizing the adjudication of cases arising in the territo- ries in non-Article III “territorial courts” on the ground that such courts exercise “conferred by Congress, in the execution of those general s which [Congress] possesses over the territories of the United States.” Amer- ican Ins. 5 ().2 And the Court has upheld laws authorizing the —————— 2 Chief Justice Marshall’s explanation in has come under at- tack on the ground that it fails to clarify the precise constitutional status of the exercised by the territorial courts. Lawson, Territo- rial Governments and the Limits of Formalism, (1990) (criticizing it as “fatuous” dictum). On the one hand, some early evidence suggests that the courts were thought to be dealing primarily with local matters that lie beyond federal judicial cognizance. Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 706–711 (2004). Yet involved a controversy indisputably capable of adjudication by Article III courts, because it both arose in admiralty and fell within the Su- preme Court’s appellate jurisdiction. at 713–714, n. 314. The best explanation for this apparent tension is that territorial courts adjudicate matters that Congress may or may not assign to Article III courts, as it wishes. Adjudication in the Political Branches, 575–576 (2007). To recognize Congress’ discretion requires no distortion of the meaning of judicial because Chief Justice Marshall’s reasoning has nothing to do with the intrinsic qualities of the adjudication itself—e.g., whether it involves “the stuff of the traditional actions at common law tried by the 8 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting adjudication of cases arising in the Armed Forces in non- Article III courts-martial, inferring from a constellation of constitutional provisions that Congress has the to provide for the adjudication of disputes among the Armed Forces it creates and that Article III extends only to civil- ian judicial 78–79 (1858). Whatever their historical validity, these prece- dents exempt cases arising in the territories and in the land and naval forces from Article III because of other provisions of the Constitution, not because of the defini- tion of judicial in Article III itself. See Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 576 (2007) (noting that both exceptions enjoy “special textual rationales that d[o] not spill over into other areas”). The third category consists of so-called “public rights” cases. Unlike the other two categories, which reflect carve-outs from the core of the judicial this cate- gory describes cases outside of that core and therefore has more to tell us about the scope of the judicial The distinction between disputes involving “public rights” and those involving “private rights” is longstand- ing, but the contours of the “public rights” doctrine have been the source of much confusion and controversy. See generally –70 (opinion of SCALIA, J.) (tracing the evolution of the doctrine). Our cases attribute the doctrine to this Court’s mid-19th cen- tury decision, Murray’s In that case, the Court observed that there are certain cases addressing “public rights, which may be presented in such form that the judicial is capable of acting on them, and which are susceptible of judicial determination, but which con- gress may or may not bring within the cognizance of the —————— courts of Westminster in 1789,” Stern v. Marshall, 564 U. S. (2011) (slip op., at 18) (internal quotation marks omitted). Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting courts of the United States, as it may deem proper.” at 284 (emphasis added). Historically, “public rights” were understood as “rights belonging to the people at large,” as distinguished from “the private unalienable rights of each individual.” Lans- This distinction is significant to our understanding of Article III, for while the legislative and executive branches may dispose of public rights at will—including through non-Article III adjudications—an exercise of the judicial is required “when the government want[s] to act authoritatively upon core private rights that had vested in a particular individual.” ; see B&B Hardware, Inc. v. Hargis Industries, Inc., ante, at 11 (THOMAS, J., dissenting). The distinction was well known at the time of the found- ing. In the tradition of John Locke, William Blackstone in his Commentaries identified the private rights to life, liberty, and property as the three “absolute” rights—so called because they “appertain[ed] and belong[ed] to par- ticular men merely as individuals,” not “to them as members of society [or] standing in various relations to each other”—that is, not dependent upon the will of the government. 1 W. Blackstone, Commentaries on the Laws of England 119 (1765) (Commentaries); see also3 Public rights, by contrast, belonged to “the whole community, considered as a community, in its social aggregate capacity.” 4 Commentaries 5 (1769); see also As the modern doctrine of the —————— 3 The protection of private rights in the Anglo-American tradition goes back to at least Magna Carta. The original 15 charter is replete with restrictions on the King’s ability to proceed against private rights, including most notably the provision that “[n]o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, except by the lawful judgment of his peers and by the law of the land.” A. Howard, Magna Carta: Text and Commentary 43 (1964). 10 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting separation of s emerged, “the courts became identi- fied with the enforcement of private right, and administra- tive agencies with the execution of public policy.” Jaffe, The Right to Judicial Review I, (1958). The Founders carried this idea forward into the Vesting Clauses of our Constitution. Those Clauses were under- stood to play a role in ensuring that the federal courts alone could act to deprive individuals of private rights because the to act conclusively against those rights was the core of the judicial As one early treatise explained, the judiciary is “that department of the gov- ernment to whom the protection of the rights of the indi- vidual is by the constitution especially confided.” 1 St. George Tucker, Blackstone’s Commentaries, App. 357 (1803). If “public rights” were not thought to fall within the core of the judicial then that could explain why Congress would be able to perform or authorize non- Article III adjudications of public rights without trans- gressing Article III’s Vesting Clause. Nineteenth-century American jurisprudence confirms that an exercise of the judicial was thought to be necessary for the disposition of private, but not public, rights.4 See B&B Hardware, ante, at 12. The treatment of —————— 4 Contemporary state-court decisions provide even more explication of the distinction between public and private rights, and many expressly tie the distinction to the separation of s. See, e.g., Newland v. Marsh, (“The legislative cannot di- rectly reach the property or vested rights of the citizen, by providing for their forfeiture or transfer to another, without trial and judgment in the courts; for to do so, would be the exercise of a which belongs to another branch of the government, and is forbidden to the legisla- ture”); see also (describing the judiciary as “the tribunal appointed by the Constitution and the law, for the ascertainment of private rights and the redress of private wrongs”); State ex rel. Atty. 5 N.E. 228, 232 (1886) (“[P]ower to hear and determine rights of property and Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting land patents illustrates the point well: Although Congress could authorize executive agencies to dispose of public rights in land—often by means of adjudicating a claim- ant’s qualifications for a land grant under a statute—the United States had to go to the courts if it wished to revoke a patent. See generally 107 Colum. L. Rev., at 577–578 (discussing land patents). That differential treatment reflected the fact that, once “legal title passed out of the United States,” the patent “[u]ndoubtedly” constituted “a vested right” and consequently could “only be divested according to law.” Johnson v. Towsley, 13 Wall. 84–85 (1871). By contrast, a party who sought to protect only a “public right” in the land had no such vested right and could not invoke the intervention of Article III courts. See Smelting (1882) (“It does not lie in the mouth of a stranger to the title to complain of the act of the government with respect to it”); see also (1839) (refusing to examine the propriety of a land patent on the ground that “Congress has the sole to declare the dignity and effect of titles emanating from the United States”). Over time, the line between public and private rights has blurred, along with the Court’s treatment of the judicial See B&B Hardware, ante, at 9–10, 12. The source of the confusion may be Murray’s —the putative source of the public rights doctrine itself. Dic- tum in the case muddles the distinction between private and public rights, and the decision is perhaps better read as an expression of the principle of sovereign im- munity. –69 (opinion of —————— of person between private parties is judicial, and can only be conferred on the courts”); see generally T. Constitutional Limitations 175 (1868) (explaining that only the judicial was thought capable of disposing of private rights). 12 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting SCALIA, J.).5 Some cases appear to have done just that, thus reading Murray’s to apply only in disputes arising between the Government and others. See, e.g., Another strain of cases has confused the distinction between private and public rights, with some cases treat- ing public rights as the equivalent of private rights enti- tled to full judicial review, American School of Magnetic and others treating what appear to be private rights as public rights on which executive action could be conclusive, see, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401–404 (1940); see also B&B Hardware, ante, at 12 (observing that Sunshine Anthracite may reflect a unique historical exception for tax cases). Cf. Northern –85 (discussing other cases that appear to reflect the historical distinction between private rights and rights created by Congress). Perhaps this confusion explains why the Court has more recently expanded the concept of public rights to include any right “so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolu- tion with limited involvement by the Article III judici- ary.” A return to the —————— 5 Another potential explanation is that Murray’s v. Hoboken Land & Improvement Co., recognized yet another special exception to Article III’s allocation of judicial applicable whenever the Government exercises its of taxation. Adjudication in the Political Branches, 588– 589 (2007); see also B&B Hardware, Inc. v. Hargis Industries, Inc., ante, at 12 (THOMAS, J., dissenting) (discussing other decisions that appear to rest on this exception). To the extent that Murray’s purported to recognize such an exception, how-ever, it did so only in dictum after noting that the statute provided a mechanism for judicial review of the accounting decision on which the distress warrant was –281. Cite as: 575 U. S. (2015) 13 THOMAS, J., dissenting historical understanding of “public rights,” however, would lead to the conclusion that the inalienable core of the judicial vested by Article III in the federal courts is the to adjudicate private rights disputes. 2 Although Congress did not enact a permanent federal bankruptcy law until the late 19th century, it has as- signed the adjudication of certain bankruptcy disputes to non-Article III actors since as early as 1800. Plank, Why Bankruptcy Judges Need Not and Should Not Be Article III Judges, Am. Bankr. L. J. 567, 608 (1998) (describing the bankruptcy s vested by Congress in non-Article III judges). Modern bankruptcy courts, however, adjudi- cate a far broader array of disputes than their earliest historical counterparts. And this Court has remained carefully noncommittal about the source of their authority to do so. See Northern (plurality opinion). Applying the historical categories of cases discussed above, one can understand why. Bankruptcy courts clearly do not qualify as territorial courts or courts-martial, but they are not an easy fit in the “public rights” category, either. No doubt certain aspects of bankruptcy involve rights lying outside the core of the judicial The most obvious of these is the right to discharge, which a party may obtain if he satisfies certain statutory criteria. Discharge is not itself a private right, but, together with the claims allowance process that precedes it, it can act conclusively on the core private rights of the debtor’s creditors. We have nevertheless implicitly recognized that the claims allowance process may proceed in a bankruptcy court, as can any matter that would necessarily be re- solved by that process, even one that affects core private rights. Stern, 564 U. S., at – (slip op., at 30–31). For this reason, bankruptcy courts and their prede- 14 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting cessors more likely enjoy a unique, textually based excep- tion, much like territorial courts and courts-martial do. See at (SCALIA, J., concurring) (slip op., at 2). That is, Article I’s Bankruptcy Clause serves to carve cases and controversies traditionally subject to resolution by bankruptcy commissioners out of Article III, giving Congress the discretion, within those historical bounda- ries, to provide for their resolution outside of Article III courts. 3 Because Stern claims by definition fall outside of the historical boundaries of the bankruptcy carve-out, they are subject to Article III. This means that, if their adjudica- tion requires the exercise of the judicial then only Article III courts may perform it. Although Stern claims indisputably involve private rights, the “public rights” doctrine suggests a way in which party consent may transform the function of adjudi- cating Stern claims into one that does not require the exercise of the judicial The premise of the “public rights” doctrine, as described above, is not that public rights affirmatively require adjudication by some other governmental but that the Government has a freer hand when private rights are not at issue. Accordingly, this premise may not require the presence of a public right at all, but may apply equally to any situation in which private rights are not asserted. Party consent, in turn, may have the effect of lifting that “private rights” bar, much in the way that waiver lifts the bar imposed by the right to a jury trial. Individuals may dispose of their own private rights freely, without judicial intervention. A party who consents to adjudication of a Stern claim by a bankruptcy court is merely making a conditional surrender of whatever private right he has on the line, contingent on some future event—namely, that Cite as: 575 U. S. (2015) 15 THOMAS, J., dissenting the bankruptcy court rules against him. Indeed, it is on this logic that the law has long encouraged and permitted private settlement of disputes, including through the action of an arbitrator not vested with the judicial See ante, at 1 (ALITO, J., concurring in part and concurring in judgment); T. Constitutional Limitations 399 (1868). Perhaps for this reason, decisions discussing the relationship between private rights and the judicial have emphasized the “involuntary divestiture” of a private right. 382– (emphasis added). But all of this does not necessarily mean that the major- ity has wound up in the right place by the wrong path. Even if consent could lift the private-rights barrier to non- judicial Government action, it would not necessarily follow that consent removes the Stern adjudication from the core of the judicial There may be other aspects of the adjudication that demand the exercise of the judicial such as entry of a final judgment enforceable with- out any further action by an Article III court. We have recognized that judgments entered by Article III courts bear unique qualities that spring from the exercise of the judicial Plaut v. Spendthrift Farm, Inc., 514 U.S. 1, 8–9 (1995), and it may be that the entry of a final judgment bearing these qualities—irrespective of the subject matter of the dispute—is a quintessential judicial function. See ante, at 16–17 (ROBERTS, C. J., dissenting). See generally Northern at 85–86, and n. 38 (distinguishing the agency orders at issue in Crowell from bankruptcy court orders on this ground). As Thomas explained in his influential treatise, “If the judges should sit to hear controversies [beyond their cognizance], they would not sit as a court; at the most they would be arbitrators only, and their decision could not be binding as a judgment, but only as 16 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting an award.”6 Ultimately, this case implicates difficult questions about the nature of bankruptcy procedure, judicial and remedies. In particular, if we were to determine that current practice accords bankruptcy court judgments a feature that demands the exercise of the judicial would that mean that all bankruptcy judgments resolving Stern claims are void, or only that courts may not give effect to that single feature that triggers Article III? The parties have briefed none of these issues, so I do not re- solve them. But the number and magnitude of these important questions—questions implicated by thousands of bankruptcy and magistrate judge decisions each year— merit closer attention than the majority has given them. —————— 6 Numerous 19th-century State Supreme Courts held unconstitutional laws authorizing individuals to consent to have their cases heard by an individual not qualified as a judge under provisions of State Consti- tutions similar to Article III, See, e.g., Winchester v. Ayres, 4 Iowa 104 (1853); Haverly Invincible Mining 575– 576 (1883); Ex parte Alabama State Bar Assn., (1891); see also Constitutional Limitations, Acknowl- edging the similarity between the practices under review and the legitimate practice of private arbitration, many of these decisions premised their finding of unconstitutionality on the issuance of a judgment or other writ that only judges may issue. See, e.g., Bishop v. (“This was not an arbitration but it was an attempt to confer upon [Mr. Wood] the of a judge, to decide the pending case, and he did decide it, the court carrying out his decision by entering the judgment he had reached, and not [its] own judgment”); Van (“We cannot look into the bill of exceptions or consider the order denying a new trial, because both are unofficial and devoid of judicial authority”); see also at 395–396 (tracing this rule back to English understandings of judicial ). These decisions treat the rule as a corollary to the rule that parties may not, by consent, confer jurisdiction. See, e.g., ; 81 Ill. 6, 7–8 ; see also Cite as: 575 U. S. (2015) 17 THOMAS, J., dissenting B Even assuming we were to decide that adjudication of Stern claims with the consent of the parties does not re- quire the exercise of the judicial that decision would not end the constitutional inquiry. As instrumen- talities of the Federal Government, the bankruptcy courts must act pursuant to some constitutional grant of author- ity. Even if the functions bankruptcy courts perform do not require an exercise of legislative, executive, or judicial we would need to identify the source of Congress’ authority to establish them and to authorize them to act. The historical carve-outs for territorial courts and courts-martial might provide some guidance. The Court has anchored Congress’ authority to create territorial courts in “the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, re- specting the territory belonging to the United States.” 1 Pet., at 5. And it has anchored Congress’ authority to create courts-martial in Congress’ Article I s concerning the Army and Navy, understood along- side the Sixth Amendment’s exception of “ ‘cases arising in the land or naval forces,’ ” from the grand jury require- ment, and Article II’s requirement that the President serve as commander in chief. –79. Although our cases examining the constitutionality of statutes allocating the to the bankruptcy courts have not considered the source of Congress’ authority to establish them, the obvious textual basis is the fourth clause of Article I, which ems Congress to “estab- lish uniform Laws on the subject of Bankruptcies throughout the United States.”7 But as with the other two —————— 7 In Northern the plurality rejected the argument that “Con- gress’ constitutional authority to establish ‘uniform Laws on the subject of Bankruptcies throughout the United States’ carries with it an 18 WELLNESS INT’L NETWORK, LTD. v. SHARIF THOMAS, J., dissenting historical carve-outs, Congress’ to establish tribu- nals within that grant is informed by historical under- standings of the bankruptcy8 We have suggested that, under this historical understanding, Congress has the to establish bankruptcy courts that exercise jurisdiction akin to that of bankruptcy commissioners in England, subject to review traditionally had in England. Ante, at 3–4 (ROBERTS, C. J., dissenting). Although Stern claims, by definition, lie outside those historical bounda- ries, a historical practice of allowing broader adjudication by bankruptcy commissioners acting with the consent of the parties could alter the analysis. The parties once again do not brief these questions, but they merit closer attention by this Court. * * * Whether parties may consent to bankruptcy court adju- dication of Stern claims is a difficult constitutional ques- tion. It turns on issues that are not adequately considered by the Court or briefed by the parties. And it cannot—and should not—be resolved through a cursory reading of Schor, which itself is hardly a model of careful constitu- tional interpretation. For these reasons, I would resolve —————— inherent to establish legislative courts capable of adjudicating ‘bankruptcy-related controversies.’ ” Northern Constr. Co. v. Marathon Pipe Line Co., (citation omitted). In that context, however, it was considering whether Article III imposes limits on Congress’ bankruptcy which is a distinct question from whether Congress has the to establish bankruptcy courts as an antecedent matter, leaving aside any Article III limitations. 8 I would be wary of concluding that every grant of lawmaking au- thority to Congress includes the to establish “legislative courts” as part of its legislative scheme. Some have suggested that Congress’ authority to establish tribunals pursuant to substantive grants of authority is informed and limited by its Article I to “constitute Tribunals inferior to the supreme Court,” U. S. Const., Art. I, cl. 9. See –697. Cite as: 575 U. S. (2015) 19 THOMAS, J., dissenting the case on the narrow grounds set forth in Part I of THE CHIEF JUSTICE’s opinion. I respectfully dissent.

Justice Stevens

majority

IBP, Inc. v. Alvarez

2005-11-08

https://www.courtlistener.com/opinion/1991818/ibp-inc-v-alvarez/

https://www.courtlistener.com/api/rest/v3/clusters/1991818/

2005-005

These consolidated cases raise questions concerning the coverage of the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947, with respect to activities of employees who must don protective clothing on the employer's premises before they engage in the productive labor for which they are primarily hired. The principal question, which is presented in both cases, is whether the time employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04-66, is whether the time employees spend waiting to put on the protective gear is compensable under the statute. In No. 03-1238, the Court of Appeals for the Ninth Circuit answered "yes" to the first question, 339 F.3d 894 (2003); in No. 04-66, the Court of Appeals for the First Circuit answered "no" to both questions, 360 F.3d 274, 281 (2004). We granted certiorari to resolve the conflict. 543 U.S. 1144 (2005). *25 I As enacted in 1938, the FLSA, 29 U.S.C. § 201 et seq., required employers engaged in the production of goods for commerce to pay their employees a minimum wage of "not less than 25 cents an hour," § 6(a)(1), 52 Stat. 1062, and prohibited the employment of any person for workweeks in excess of 40 hours after the second year following the legislation "unless such employee receives compensation for his employment in excess of [40] hours . . . at a rate not less than one and one-half times the regular rate at which he is employed," id., § 7(a)(3), at 1063. Neither "work" nor "workweek" is defined in the statute.[1] Our early cases defined those terms broadly. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944), we held that time spent traveling from iron ore mine portals to underground working areas was compensable; relying on the remedial purposes of the statute and Webster's Dictionary, we described "work or employment" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Id., at 598; see id., at 598, n. 11. The same year, in Armour & Co. v. Wantock, 323 U.S. 126 (1944), we clarified that "exertion" was not in fact necessary for an activity to constitute "work" under the FLSA. We pointed out that "an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen." Id., at 133. Two years later, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), we defined "the statutory workweek" to "includ[e] all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Id., at 690-691. Accordingly, *26 we held that the time necessarily spent by employees walking from timeclocks near the factory entrance gate to their workstations must be treated as part of the workweek. Id., at 691-692. The year after our decision in Anderson, Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA. Based on findings that judicial interpretations of the FLSA had superseded "long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation," 61 Stat. 84, it responded with two statutory remedies, the first relating to "existing claims," id., at 85-86, and the second to "future claims," id., at 87-88. Both remedies distinguish between working time that is compensable pursuant to contract or custom and practice, on the one hand, and time that was found compensable under this Court's expansive reading of the FLSA, on the other. Like the original FLSA, however, the Portal-to-Portal Act omits any definition of the term "work." With respect to existing claims, the Portal-to-Portal Act provided that employers would not incur liability on account of their failure to pay minimum wages or overtime compensation for any activity that was not compensable by either an express contract or an established custom or practice.[2]*27 With respect to "future claims," the Act preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under our cases: walking on the employer's premises to and from the actual place of performance of the principal activity of the employee, and activities that are "preliminary or postliminary" to that principal activity. Specifically, Part III of the Portal-to-Portal Act, entitled "FUTURE CLAIMS," provides in relevant part: "SEC. 4. RELIEF FROM CERTAIN FUTURE CLAIMS UNDER THE FAIR LABOR STANDARDS ACT OF 1938 . . . — "(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act— "(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and "(2) activities which are preliminary to or postliminary to said principal activity or activities, *28 "which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." 61 Stat. 86-87 (codified at 29 U.S.C. § 254(a)). Other than its express exceptions for travel to and from the location of the employee's "principal activity," and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court's earlier descriptions of the terms "work" and "workweek," or to define the term "workday." A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked "within" the workday. That regulation states: "[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§ 4] have no application." 29 CFR § 790.6(a) (2005).[3] Similarly, *29 consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the "workday" is generally defined as "the period between the commencement and completion on the same workday of an employee's principal activity or activities." § 790.6(b). These regulations have remained in effect since 1947, see 12 Fed. Reg. 7658 (1947), and no party disputes the validity of the continuous workday rule. In 1955, eight years after the enactment of the Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the "time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide . . . ." Steiner v. Mitchell, 350 U.S. 247, 248 (1956). After distinguishing "changing clothes and showering under normal conditions" and stressing the important health and safety risks associated with the production of batteries, id., at 249, the Court endorsed the Court of Appeals' conclusion that these activities were compensable under the FLSA. In reaching this result, we specifically agreed with the Court of Appeals that "the term `principal activity or activities' in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an `integral and indispensable part of *30 the principal activities,' and that the activities in question fall within this category." Id., at 252-253. Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are "performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)." Id., at 256. The principal question presented by these consolidated cases—both of which involve required protective gear that the courts below found integral and indispensable to the employees' work—is whether postdonning and predoffing walking time is specifically excluded by § 4(a)(1). We conclude that it is not. II Petitioner in No. 03-1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass armguards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear. Production workers' pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, *31 IBP has also paid for four minutes of clothes-changing time.[4] In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts. After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment. Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday.[5] The court did not, however, allow any recovery for ordinary clothes changing and washing, or for the "donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnet[s]." App. to Pet. for Cert. in No. 03-1238, p. 65a. The District Court proceeded to apply these legal conclusions in making detailed factual findings with regard to the different groups of employees. For example, the District *32 Court found that, under its view of what was covered by the FLSA, processing division knife users were entitled to compensation for between 12 and 14 minutes of preproduction and postproduction work, including 3.3 to 4.4 minutes of walking time. The Court of Appeals agreed with the District Court's ultimate conclusions on these issues, but in part for different reasons. 339 F.3d 894 (CA9 2003). After noting that the question whether activities "`are an integral and indispensable part of the principal activities'" within the meaning of Steiner is "context specific," 339 F.3d, at 902, the Court of Appeals endorsed the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear such as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being "principal activities" as defined by the Portal-to-Portal Act, but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was "`de minimis as a matter of law.'" Id., at 904. IBP does not challenge the holding below that, in light of Steiner, the donning and doffing of unique protective gear are "principal activities" under § 4 of the Portal-to-Portal Act. Moreover, IBP has not asked us to overrule Steiner. Considerations of stare decisis are particularly forceful in the area of statutory construction, especially when a unanimous interpretation of a statute has been accepted as settled law for several decades. Thus, the only question for us to decide is whether the Court of Appeals correctly rejected IBP's contention that the walking between the locker rooms and the production areas is excluded from FLSA coverage by § 4(a)(1) of the Portal-to-Portal Act. IBP argues that the text of § 4(a)(1), the history and purpose of its enactment, and the Department of Labor's interpretive guidance compel the conclusion that the Portal-to-Portal *33 Act excludes this walking time from the scope of the FLSA. We find each of these arguments unpersuasive. Text IBP correctly points out that our decision in Steiner held only that the donning and doffing of protective gear in that case were activities "integral and indispensable" to the workers' principal activity of making batteries. 350 U.S., at 256. In IBP's view, a category of "integral and indispensable" activities that may be compensable because they are not merely preliminary or postliminary within the meaning of § 4(a)(2) is not necessarily coextensive with the actual "principal activities" which the employee "is employed to perform" within the meaning of § 4(a)(1). In other words, IBP argues that, even though the court below concluded that donning and doffing of unique protective gear are "integral and indispensable" to the employees' principal activity, this means only that the donning and doffing of such gear are themselves covered by the FLSA. According to IBP, the donning is not a "principal activity" that starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not compensable. In effect, IBP asks us to create a third category of activities—those that are "integral and indispensable" to a "principal activity" and thus not excluded from coverage by § 4(a)(2), but that are not themselves "principal activities" as that term is defined by § 4(a)(1). IBP's submission is foreclosed by Steiner. As noted above, in Steiner we made it clear that § 4 of the Portal-to-Portal Act does not remove activities which are "`integral and indispensable'" to "`principal activities'" from FLSA coverage precisely because such activities are themselves "`principal activities.'" Id., at 253. While Steiner specifically addressed the proper interpretation of the term "principal activity or activities" in § 4(a)(2), there is no plausible argument that these terms mean something different in *34 § 4(a)(2) than they do in § 4(a)(1).[6] This is not only because of the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning. E. g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990). It is also because § 4(a)(2) refers to "said principal activity or activities." 61 Stat. 87 (emphasis added). The "said" is an explicit reference to the use of the identical term in § 4(a)(1). Indeed, IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently "principal" to be compensable, but not sufficiently principal to commence the workday. Accepting the necessary import of our holding in Steiner, we conclude that the locker rooms where the special safety gear is donned and doffed are the relevant "place of performance" of the principal activity that the employee was employed to perform within the meaning of § 4(a)(1). Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced. Purpose IBP emphasizes that our decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, may well have been the proximate cause of the enactment of the Portal-to-Portal Act. In that case we held that the FLSA mandated compensation for the time that employees spent walking from timeclocks located near the plant entrance to their respective places of work prior to the start of their productive labor. Id., at 690-691. In IBP's view, Congress' forceful repudiation *35 of that holding reflects a purpose to exclude what IBP regards as the quite similar walking time spent by respondents before and after their work slaughtering cattle and processing meat. Even if there is ambiguity in the statute, we should construe it to effectuate that important purpose. This argument is also unpersuasive. There is a critical difference between the walking at issue in Anderson and the walking at issue in this case. In Anderson the walking preceded the employees' principal activity; it occurred before the workday began. The relevant walking in this case occurs after the workday begins and before it ends. Only if we were to endorse IBP's novel submission that an activity can be sufficiently "principal" to be compensable, but not sufficiently so to start the workday, would this case be comparable to Anderson. Moreover, there is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case. Indeed, for processing division knife users, the largest segment of the work force at IBP's plant, the walking time in dispute here consumes less time than the donning and doffing activities that precede or follow it. It is more comparable to time spent walking between two different positions on an assembly line than to the prework walking in Anderson. Regulations The regulations adopted by the Secretary of Labor in 1947 support respondents' view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday. Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line. See 29 CFR § 790.7(c) (2005) (explaining that the Portal-to-Portal Act does not affect the compensability of *36 time spent traveling from the place of performance of one principal activity to that of another). See also § 785.38 (explaining, in a later regulation interpreting the FLSA, that "[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked ..."). IBP argues, however, that two provisions in the regulations point to a different conclusion—the use of the phrase "whistle to whistle" in discussing the limits of the "workday," § 790.6, and a footnote stating that postchanging walking time is not "necessarily" excluded from the scope of § 4(a)(1), § 790.7(g), n. 49. The "whistle to whistle" reference does reflect the view that in most situations the workday will be defined by the beginning and ending of the primary productive activity. But the relevant text describes the workday as "roughly the period `from whistle to whistle.'" § 790.6(a) (emphasis added). Indeed, the next subsection of this same regulation states: "`Workday' as used in the Portal Act means, in general, the period between the commencement and completion on the same workday of an employee's principal activity or activities." § 790.6(b). IBP's emphasis on the "whistle to whistle" reference is unavailing. The footnote on which IBP relies states: "Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee's `principal activity.' This does not necessarily mean, however, that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform, would be excluded from the type of travel to *37 which section 4(a) refers." § 790.7(g), n. 49 (emphasis added; citations omitted). This footnote does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be. That assumption is, of course, inconsistent with IBP's submission that such walking is always excluded by § 4(a), just as it is inconsistent with respondents' view that such walking is never excluded. Whatever the correct explanation for the Secretary's ambiguous (and apparently ambivalent) statement may be, it is not sufficient to overcome the clear statements in the text of the regulations that support our holding. And it surely is not sufficient to overcome the statute itself, whose meaning is definitively resolved by Steiner. For the foregoing reasons, we hold that any activity that is "integral and indispensable" to a "principal activity" is itself a "principal activity" under § 4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA. III Respondent in No. 04-66, Barber Foods, Inc. (Barber), operates a poultry processing plant in Portland, Maine, that employs about 300 production workers. These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing. They are paid by the hour from the time they punch in to computerized timeclocks located at the entrances to the production floor. Petitioners are Barber employees and former employees who brought this action to recover compensation for alleged *38 unrecorded work covered by the FLSA. Specifically, they claimed that Barber's failure to compensate them for (a) donning and doffing required protective gear and (b) the attendant walking and waiting violated the statute. After extensive discovery, the Magistrate Judge issued a comprehensive opinion analyzing the facts in detail, and recommending the entry of partial summary judgment in favor of Barber. That opinion, which was later adopted by the District Court for Maine, included two critical rulings. First, the Magistrate Judge held that "the donning and doffing of clothing and equipment required by the defendant or by government regulation, as opposed to clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs' work [and therefore are] not excluded from compensation under the Portalto-Portal Act as preliminary or postliminary activities." App. to Pet. for Cert. in No. 04-66, pp. 36a-40a. Second, the Magistrate Judge rejected petitioners' claims for "compensation for the time spent before obtaining their clothing and equipment." Id., at 33a. Such time, in the Magistrate Judge's view, "could [not] reasonably be construed to be an integral part of employees' work activities any more than walking to the cage from which hairnets and earplugs are dispensed . . . ." Ibid. Accordingly, Barber was "entitled to summary judgment on any claims based on time spent walking from the plant entrances to an employee's workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment." Id., at 33a-34a. The Magistrate Judge's opinion did not specifically address the question whether the walking time between the production line and the place of donning and doffing was encompassed by § 4 of the Portal-to-Portal Act, and thus excluded from coverage under the FLSA. Whatever the intended scope of the Magistrate's grant of partial summary judgment, *39 the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear. Before the case was submitted to the jury, the parties stipulated that four categories of workers—rotating, setup, meatroom, and shipping and receiving associates—were required to don protective gear at the beginning of their shifts and were required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees—maintenance and sanitation associates—were not required to don protective gear before starting their shifts.[7] Accordingly, the jury ruled for Barber on all counts. On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noncompensable the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners' argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by §§ 4(a)(1) and (2) of the Portal-to-Portal Act. 360 F.3d, at 281. As we have explained in our discussion of IBP's submission, see Part II, supra, that categorical conclusion was incorrect. Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a "preliminary or postliminary activity" and thus was excluded from FLSA *40 coverage by the Portal-to-Portal Act. 360 F.3d, at 282. Our analysis in Part II, supra, demonstrates that the Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is "integral and indispensable" to employees' work is a "principal activity" under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA. The time spent waiting to don—time that elapses before the principal activity of donning integral and indispensable gear—presents the quite different question whether it should have the effect of advancing the time when the workday begins. Barber argues that such predonning waiting time is explicitly covered by § 4(a)(2) of the Portal-to-Portal Act, which, as noted above, excludes "activities which are preliminary to or postliminary to [a] principal activity or activities" from the scope of the FLSA. 29 U.S.C. § 254(a)(2). By contrast, petitioners, supported by the United States as amicus curiae, maintain that the predonning waiting time is "integral and indispensable" to the "principal activity" of donning, and is therefore itself a principal activity. However, unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not "integral and indispensable" in the same sense that the donning is. It does, however, always comfortably qualify as a "preliminary" activity. We thus do not agree with petitioners that the predonning waiting time at issue in this case is a "principal activity" under § 4(a).[8] As Barber points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are "integral and indispensable" to a "principal activity" *41 under Steiner. For example, walking from a timeclock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress' intent to repudiate Anderson's holding that such walking time was compensable under the FLSA. We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a "principal activity" under § 4(a), without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a "principal activity" under § 4(a) and would thus be unaffected by the Portal-to-Portal Act. The Government also relies on a regulation promulgated by the Secretary of Labor as supporting petitioners' view. That regulation, 29 CFR § 790.7(h) (2005), states that when an employee "is required by his employer to report at a particular hour at his workbench or other place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee's principal activities." That regulation would be applicable if Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed, but there is no such evidence in the record in this case. More pertinent, we believe, is the portion of § 790.7 that characterizes the time that employees must spend waiting to check in or waiting to receive their paychecks as generally a "preliminary" activity covered by the Portal-to-Portal Act. See § 790.7(g). That regulation is fully consistent with the statutory provisions that allow the compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry. *42 In short, we are not persuaded that such waiting—which in this case is two steps removed from the productive activity on the assembly line—is "integral and indispensable" to a "principal activity" that identifies the time when the continuous workday begins. Accordingly, we hold that § 4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. IV For the reasons stated above, we affirm the judgment of the Court of Appeals for the Ninth Circuit in No. 03-1238. We affirm in part and reverse in part the judgment of the Court of Appeals for the First Circuit in No. 04-66, and we remand the case for further proceedings consistent with this opinion. It is so ordered.

These consolidated cases raise questions concerning the coverage of the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947, with respect to activities of employees who must don protective clothing on the employer's premises before they engage in the productive labor for which they are primarily hired. The principal question, which is presented in both cases, is whether the time employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04-66, is whether the time employees spend waiting to put on the protective gear is compensable under the statute. In No. 03-1238, the Court of Appeals for the Ninth Circuit answered "yes" to the first question, ; in No. 04-66, the Court of Appeals for the First Circuit answered "no" to both questions, We granted certiorari to resolve the conflict. *25 I As enacted in 1938, the FLSA, et seq., required employers engaged in the production of goods for commerce to pay their employees a minimum wage of "not less than 25 cents an hour," 6(a)(1), and prohibited the employment of any person for workweeks in excess of 40 hours after the second year following the legislation "unless such employee receives compensation for his employment in excess of [40] hours at a rate not less than one and one-half times the regular rate at which he is employed," 7(a)(3), at 1063. Neither "work" nor "workweek" is defined in the statute.[1] Our early cases defined those terms broadly. In Tennessee Coal, Iron & R. we held that time spent traveling from iron ore mine portals to underground working areas was compensable; relying on the remedial purposes of the statute and Webster's Dictionary, we described "work or employment" as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." ; see n. 11. The same year, in Armour & we clarified that "exertion" was not in fact necessary for an activity to constitute "work" under the FLSA. We pointed out that "an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen." Two years later, in we defined "the statutory workweek" to "includ[e] all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace." Accordingly, *26 we held that the time necessarily spent by employees walking from timeclocks near the factory entrance gate to their workstations must be treated as part of the workweek. The year after our decision in Anderson, Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA. Based on findings that judicial interpretations of the FLSA had superseded "long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation," it responded with two statutory remedies, the first relating to "existing claims," and the second to "future claims," Both remedies distinguish between working time that is compensable pursuant to contract or custom and practice, on the one hand, and time that was found compensable under this Court's expansive reading of the FLSA, on the other. Like the original FLSA, however, the Portal-to-Portal Act omits any definition of the term "work." With respect to existing claims, the Portal-to-Portal Act provided that employers would not incur liability on account of their failure to pay minimum wages or overtime compensation for any activity that was not compensable by either an express contract or an established custom or practice.[2]*27 With respect to "future claims," the Act preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under our cases: walking on the employer's premises to and from the actual place of performance of the principal activity of the employee, and activities that are "preliminary or postliminary" to that principal activity. Specifically, Part I of the Portal-to-Portal Act, entitled "FUTURE CLAIMS," provides in relevant part: "SEC. 4. RELIEF FROM CERTAIN FUTURE CLAIMS UNDER THE FAIR LABOR STANDARDS ACT OF 1938 — "(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act— "(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and "(2) activities which are preliminary to or postliminary to said principal activity or activities, *28 "which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities." -87 (codified at 29 U.S.C. 254(a)). Other than its express exceptions for travel to and from the location of the employee's "principal activity," and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court's earlier descriptions of the terms "work" and "workweek," or to define the term "workday." A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked "within" the workday. That regulation states: "[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [ 4] have no application." 29 CFR 790.6(a)[3] Similarly, *29 consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the "workday" is generally defined as "the period between the commencement and completion on the same workday of an employee's principal activity or activities." 790.6(b). These regulations have remained in effect since 1947, see (1947), and no party disputes the validity of the continuous workday rule. In 1955, eight years after the enactment of the Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the "time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide" After distinguishing "changing clothes and showering under normal conditions" and stressing the important health and safety risks associated with the production of batteries, the Court endorsed the Court of Appeals' conclusion that these activities were compensable under the FLSA. In reaching this result, we specifically agreed with the Court of Appeals that "the term `principal activity or activities' in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an `integral and indispensable part of *30 the principal activities,' and that the activities in question fall within this category." Thus, under Steiner, activities, such as the donning and doffing of specialized protective gear, that are "performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1)." The principal question presented by these consolidated cases—both of which involve required protective gear that the courts below found integral and indispensable to the employees' work—is whether postdonning and predoffing walking time is specifically excluded by 4(a)(1). We conclude that it is not. Petitioner in No. 03-1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass armguards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear. Production workers' pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, *31 IBP has also paid for four minutes of clothes-changing time.[4] In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts. After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment. Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday.[5] The court did not, however, allow any recovery for ordinary clothes changing and washing, or for the "donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnet[s]." App. to Pet. for Cert. in No. 03-1238, p. 65a. The District Court proceeded to apply these legal conclusions in making detailed factual findings with regard to the different groups of employees. For example, the District *32 Court found that, under its view of what was covered by the FLSA, processing division knife users were entitled to compensation for between 12 and 14 minutes of preproduction and postproduction work, including 3.3 to 4.4 minutes of walking time. The Court of Appeals agreed with the District Court's ultimate conclusions on these issues, but in part for different reasons. After noting that the question whether activities "`are an integral and indispensable part of the principal activities'" within the meaning of Steiner is "context specific," the Court of Appeals endorsed the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear such as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being "principal activities" as defined by the Portal-to-Portal Act, but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was "`de minimis as a matter of law.'" IBP does not challenge the holding below that, in light of Steiner, the donning and doffing of unique protective gear are "principal activities" under 4 of the Portal-to-Portal Moreover, IBP has not asked us to overrule Steiner. Considerations of stare decisis are particularly forceful in the area of statutory construction, especially when a unanimous interpretation of a statute has been accepted as settled law for several decades. Thus, the only question for us to decide is whether the Court of Appeals correctly rejected IBP's contention that the walking between the locker rooms and the production areas is excluded from FLSA coverage by 4(a)(1) of the Portal-to-Portal IBP argues that the text of 4(a)(1), the history and purpose of its enactment, and the Department of Labor's interpretive guidance compel the conclusion that the Portal-to-Portal *33 Act excludes this walking time from the scope of the FLSA. We find each of these arguments unpersuasive. Text IBP correctly points out that our decision in Steiner held only that the donning and doffing of protective gear in that case were activities "integral and indispensable" to the workers' principal activity of making 350 U.S., In IBP's view, a category of "integral and indispensable" activities that may be compensable because they are not merely preliminary or postliminary within the meaning of 4(a)(2) is not necessarily coextensive with the actual "principal activities" which the employee "is employed to perform" within the meaning of 4(a)(1). In other words, IBP argues that, even though the court below concluded that donning and doffing of unique protective gear are "integral and indispensable" to the employees' principal activity, this means only that the donning and doffing of such gear are themselves covered by the FLSA. According to IBP, the donning is not a "principal activity" that starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not compensable. In effect, IBP asks us to create a third category of activities—those that are "integral and indispensable" to a "principal activity" and thus not excluded from coverage by 4(a)(2), but that are not themselves "principal activities" as that term is defined by 4(a)(1). IBP's submission is foreclosed by Steiner. As noted above, in Steiner we made it clear that 4 of the Portal-to-Portal Act does not remove activities which are "`integral and indispensable'" to "`principal activities'" from FLSA coverage precisely because such activities are themselves "`principal activities.'" While Steiner specifically addressed the proper interpretation of the term "principal activity or activities" in 4(a)(2), there is no plausible argument that these terms mean something different in *34 4(a)(2) than they do in 4(a)(1).[6] This is not only because of the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning. E. g., It is also because 4(a)(2) refers to "said principal activity or activities." The "said" is an explicit reference to the use of the identical term in 4(a)(1). Indeed, IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently "principal" to be compensable, but not sufficiently principal to commence the workday. Accepting the necessary import of our holding in Steiner, we conclude that the locker rooms where the special safety gear is donned and doffed are the relevant "place of performance" of the principal activity that the employee was employed to perform within the meaning of 4(a)(1). Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced. Purpose IBP emphasizes that our decision in may well have been the proximate cause of the enactment of the Portal-to-Portal In that case we held that the FLSA mandated compensation for the time that employees spent walking from timeclocks located near the plant entrance to their respective places of work prior to the start of their productive labor. In IBP's view, Congress' forceful repudiation *35 of that holding reflects a purpose to exclude what IBP regards as the quite similar walking time spent by respondents before and after their work slaughtering cattle and processing meat. Even if there is ambiguity in the statute, we should construe it to effectuate that important purpose. This argument is also unpersuasive. There is a critical difference between the walking at issue in Anderson and the walking at issue in this case. In Anderson the walking preceded the employees' principal activity; it occurred before the workday began. The relevant walking in this case occurs after the workday begins and before it ends. Only if we were to endorse IBP's novel submission that an activity can be sufficiently "principal" to be compensable, but not sufficiently so to start the workday, would this case be comparable to Anderson. Moreover, there is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case. Indeed, for processing division knife users, the largest segment of the work force at IBP's plant, the walking time in dispute here consumes less time than the donning and doffing activities that precede or follow it. It is more comparable to time spent walking between two different positions on an assembly line than to the prework walking in Anderson. Regulations The regulations adopted by the Secretary of Labor in 1947 support respondents' view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday. Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line. See 29 CFR 790.7(c) See also 785.38 (explaining, in a later regulation interpreting the FLSA, that "[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked"). IBP argues, however, that two provisions in the regulations point to a different conclusion—the use of the phrase "whistle to whistle" in discussing the limits of the "workday," 790.6, and a footnote stating that postchanging walking time is not "necessarily" excluded from the scope of 4(a)(1), 790.7(g), n. 49. The "whistle to whistle" reference does reflect the view that in most situations the workday will be defined by the beginning and ending of the primary productive activity. But the relevant text describes the workday as "roughly the period `from whistle to whistle.'" 790.6(a) Indeed, the next subsection of this same regulation states: "`Workday' as used in the Portal Act means, in general, the period between the commencement and completion on the same workday of an employee's principal activity or activities." 790.6(b). IBP's emphasis on the "whistle to whistle" reference is unavailing. The footnote on which IBP relies states: "Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee's `principal activity.' This does not necessarily mean, however, that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform, would be excluded from the type of travel to *37 which section 4(a) refers." 790.7(g), n. 49 (emphasis added; citations omitted). This footnote does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be. That assumption is, of course, inconsistent with IBP's submission that such walking is always excluded by 4(a), just as it is inconsistent with respondents' view that such walking is never excluded. Whatever the correct explanation for the Secretary's ambiguous (and apparently ambivalent) statement may be, it is not sufficient to overcome the clear statements in the text of the regulations that support our holding. And it surely is not sufficient to overcome the statute itself, whose meaning is definitively resolved by Steiner. For the foregoing reasons, we hold that any activity that is "integral and indispensable" to a "principal activity" is itself a "principal activity" under 4(a) of the Portal-to-Portal Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA. I Respondent in No. 04-66, Barber Foods, Inc. (Barber), operates a poultry processing plant in Portland, Maine, that employs about 300 production workers. These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing. They are paid by the hour from the time they punch in to computerized timeclocks located at the entrances to the production floor. Petitioners are Barber employees and former employees who brought this action to recover compensation for alleged *38 unrecorded work covered by the FLSA. Specifically, they claimed that Barber's failure to compensate them for (a) donning and doffing required protective gear and (b) the attendant walking and waiting violated the statute. After extensive discovery, the Magistrate Judge issued a comprehensive opinion analyzing the facts in detail, and recommending the entry of partial summary judgment in favor of Barber. That opinion, which was later adopted by the District Court for Maine, included two critical rulings. First, the Magistrate Judge held that "the donning and doffing of clothing and equipment required by the defendant or by government regulation, as opposed to clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs' work [and therefore are] not excluded from compensation under the Portalto-Portal Act as preliminary or postliminary activities." App. to Pet. for Cert. in No. 04-66, pp. 36a-40a. Second, the Magistrate Judge rejected petitioners' claims for "compensation for the time spent before obtaining their clothing and equipment." at 33a. Such time, in the Magistrate Judge's view, "could [not] reasonably be construed to be an integral part of employees' work activities any more than walking to the cage from which hairnets and earplugs are dispensed" Accordingly, Barber was "entitled to summary judgment on any claims based on time spent walking from the plant entrances to an employee's workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment." at 33a-34a. The Magistrate Judge's opinion did not specifically address the question whether the walking time between the production line and the place of donning and doffing was encompassed by 4 of the Portal-to-Portal Act, and thus excluded from coverage under the FLSA. Whatever the intended scope of the Magistrate's grant of partial summary judgment, *39 the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear. Before the case was submitted to the jury, the parties stipulated that four categories of workers—rotating, setup, meatroom, and shipping and receiving associates—were required to don protective gear at the beginning of their shifts and were required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees—maintenance and sanitation associates—were not required to don protective gear before starting their shifts.[7] Accordingly, the jury ruled for Barber on all counts. On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noncompensable the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners' argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by 4(a)(1) and (2) of the Portal-to-Portal 360 F.3d, at As we have explained in our discussion of IBP's submission, see Part that categorical conclusion was incorrect. Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a "preliminary or postliminary activity" and thus was excluded from FLSA *40 coverage by the Portal-to-Portal Our analysis in Part demonstrates that the Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is "integral and indispensable" to employees' work is a "principal activity" under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA. The time spent waiting to don—time that elapses before the principal activity of donning integral and indispensable gear—presents the quite different question whether it should have the effect of advancing the time when the workday begins. Barber argues that such predonning waiting time is explicitly covered by 4(a)(2) of the Portal-to-Portal Act, which, as noted above, excludes "activities which are preliminary to or postliminary to [a] principal activity or activities" from the scope of the FLSA. 29 U.S.C. 254(a)(2). By contrast, petitioners, supported by the United States as amicus curiae, maintain that the predonning waiting time is "integral and indispensable" to the "principal activity" of donning, and is therefore itself a principal activity. However, unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not "integral and indispensable" in the same sense that the donning is. It does, however, always comfortably qualify as a "preliminary" activity. We thus do not agree with petitioners that the predonning waiting time at issue in this case is a "principal activity" under 4(a).[8] As Barber points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are "integral and indispensable" to a "principal activity" *41 under Steiner. For example, walking from a timeclock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress' intent to repudiate Anderson's holding that such walking time was compensable under the FLSA. We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a "principal activity" under 4(a), without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a "principal activity" under 4(a) and would thus be unaffected by the Portal-to-Portal The Government also relies on a regulation promulgated by the Secretary of Labor as supporting petitioners' view. That regulation, 29 CFR 790.7(h) states that when an employee "is required by his employer to report at a particular hour at his workbench or other place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee's principal activities." That regulation would be applicable if Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed, but there is no such evidence in the record in this case. More pertinent, we believe, is the portion of 790.7 that characterizes the time that employees must spend waiting to check in or waiting to receive their paychecks as generally a "preliminary" activity covered by the Portal-to-Portal See 790.7(g). That regulation is fully consistent with the statutory provisions that allow the compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry. *42 In short, we are not persuaded that such waiting—which in this case is two steps removed from the productive activity on the assembly line—is "integral and indispensable" to a "principal activity" that identifies the time when the continuous workday begins. Accordingly, we hold that 4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. IV For the reasons stated above, we affirm the judgment of the Court of Appeals for the Ninth Circuit in No. 03-1238. We affirm in part and reverse in part the judgment of the Court of Appeals for the First Circuit in No. 04-66, and we remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

majority

Gross v. FBL Financial Services, Inc.

2009-06-18

https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145857/

2008-074

The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. I Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross' job responsibilities to a newly created position — claims administration manager. That position was given to Lisa Kneeskern, *2347 who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL's reallocation of his former job responsibilities to Kneeskern. In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee "because of such individual's age." 29 U.S.C. § 623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross' reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion). At the close of trial, and over FBL's objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL "demoted [him] to claims projec[t] coordinator" and that his "age was a motivating factor" in FBL's decision to demote him. App. 9-10. The jury was further instructed that Gross' age would qualify as a "`motivating factor,' if [it] played a part or a role in [FBL]'s decision to demote [him]." Id., at 10. The jury was also instructed regarding FBL's burden of proof. According to the District Court, the "verdict must be for [FBL] ... if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age." Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8. FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). See 526 F.3d 356, 358 (2008). In Price Waterhouse, this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations — i.e., a "mixed-motives" case. 490 U.S., at 232, 244-247, 109 S. Ct. 1775 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 231-258, 109 S. Ct. 1775, Justices White and O'Connor separately concurred in the judgment, see id., at 258-261, 109 S. Ct. 1775 (opinion of White, J.); id., at 261-279, 109 S. Ct. 1775 (opinion of O'Connor, J.), and three Justices dissented, see id., at 279-295, 109 S. Ct. 1775 (opinion of KENNEDY, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a "motivating" or a "`substantial'" factor in the employer's action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id., at 258, 109 S. Ct. 1775 (plurality opinion); id., at 259-260, 109 S. Ct. 1775 (opinion of White, J.); id., at 276, 109 S. Ct. 1775 (opinion of O'Connor, J.). Justice O'Connor further found that to shift the burden of persuasion to the employer, the employee must present "direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision." Id., at 276, 109 S. Ct. 1775. *2348 In accordance with Circuit precedent, the Court of Appeals identified Justice O'Connor's opinion as controlling. See 526 F.3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F.3d 718, 724 (C.A.8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present "[d]irect evidence ... sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action." 526 F.3d, at 359 (internal quotation marks omitted). In the Court of Appeals' view, "direct evidence" is only that evidence that "show[s] a specific link between the alleged discriminatory animus and the challenged decision." Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer "`to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.'" Ibid. (quoting Price Waterhouse, supra, at 276, 109 S. Ct. 1775 (opinion of O'Connor, J.)). The Court of Appeals thus concluded that the District Court's jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor — not just "direct evidence" related to FBL's alleged consideration of age. See 526 F.3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed only to determine whether Gross had carried his burden of "prov[ing] that age was the determining factor in FBL's employment action." See ibid. We granted certiorari, 555 U.S. ___, 129 S. Ct. 680, 172 L. Ed. 2d 649 (2008), and now vacate the decision of the Court of Appeals. II The parties have asked us to decide whether a plaintiff must "present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case." Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.[1] We hold that it does not. A Petitioner relies on this Court's decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA. *2349 In Price Waterhouse, a plurality of the Court and two Justices concurring in the judgment determined that once a "plaintiff in a Title VII case proves that [the plaintiff's membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account." 490 U.S., at 258, 109 S. Ct. 1775; see also id., at 259-260, 109 S. Ct. 1775 (opinion of White, J.); id., at 276, 109 S. Ct. 1775 (opinion of O'Connor, J.). But as we explained in Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-95, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003), Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was "a motivating factor" for an adverse employment decision. See 42 U.S.C. § 2000e-2(m) (providing that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice" (emphasis added)); § 2000e-5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of § 2000e-2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we "must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination." Federal Express Corp. v. Holowecki, 552 U.S. ___, ___, 128 S. Ct. 1147, 1153, 170 L. Ed. 2d 10 (2008). Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§ 2000e-2(m) and 2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, § 115, 105 Stat. 1079; id., § 302, at 1088. We cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 256, 111 S. Ct. 1227, 113 L. Ed. 2d 274 (1991). Furthermore, as the Court has explained, "negative implications raised by disparate provisions are strongest" when the provisions were "considered simultaneously when the language raising the implication was inserted." Lindh v. Murphy, 521 U.S. 320, 330, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). As a result, the Court's interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse.[2] *2350 B Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 252, 124 S. Ct. 1756, 158 L. Ed. 2d 529 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, that "[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (emphasis added). The words "because of" mean "by reason of: on account of." 1 Webster's Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining "because of" to mean "By reason of, on account of" (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining "because" to mean "by reason; on account"). Thus, the ordinary meaning of the ADEA's requirement that an employer took adverse action "because of" age is that age was the "reason" that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993) (explaining that the claim "cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome" (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. ___, ___, 128 S. Ct. 2131, 2141-2142, 170 L. Ed. 2d 1012 (2008) (recognizing that the phrase, "by reason of," requires at least a showing of "but for" causation (internal quotation marks omitted)); Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63-64, and n. 14, 127 S. Ct. 2201, 167 L. Ed. 2d 1045 (2007) (observing that "[i]n common talk, the phrase `based on' indicates a but-for causal relationship and thus a necessary logical condition" and that the statutory phrase, "based on," has the same meaning as the phrase, "because of" (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) ("An act or omission is not regarded as a cause of an event if the particular event would have occurred without it").[3] *2351 It follows, then, that under § 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the "but-for" cause of the employer's adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. See Kentucky Retirement Systems v. EEOC, 554 U.S. ___, ___-___, ___-___, 128 S. Ct. 2361, 2363-2366, 2369-2371, 171 L. Ed. 2d 322 (2008); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). And nothing in the statute's text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is "silent on the allocation of the burden of persuasion," we "begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims." Schaffer v. Weast, 546 U.S. 49, 56, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005); see also Meacham v. Knolls Atomic Power Laboratory, 554 U.S. ___, ___, 128 S. Ct. 2395, 2400-2401, 171 L. Ed. 2d 283 (2008) ("Absent some reason to believe that Congress intended otherwise, ... we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief" (internal quotation marks omitted)). We have no warrant to depart from the general rule in this setting. Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the "but-for" cause of the challenged employer decision. See Reeves, supra, at 141-143, 147, 120 S. Ct. 2097.[4] III Finally, we reject petitioner's contention that our interpretation of the ADEA is controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.[5] In any event, it is far *2352 from clear that the Court would have the same approach were it to consider the question today in the first instance. Cf. 14 Penn Plaza LLC v. Pyett, 556 U.S. ___, ___, 129 S. Ct. 1456, 1472, 173 L. Ed. 2d 398 (2009) (declining to "introduc[e] a qualification into the ADEA that is not found in its text"); Meacham, supra, at ___, 128 S.Ct., at 2406 (explaining that the ADEA must be "read ... the way Congress wrote it"). Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury, courts have found it particularly difficult to craft an instruction to explain its burden-shifting framework. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1179 (C.A.2 1992) (referring to "the murky water of shifting burdens in discrimination cases"); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 661 (C.A.7 1991) (en banc) (Flaum, J., dissenting) ("The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally"). Thus, even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977) (reevaluating precedent that was subject to criticism and "continuing controversy and confusion"); Payne v. Tennessee, 501 U.S. 808, 839-844, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (SOUTER, J., concurring).[6] IV We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. I Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of Gross held the position of claims administration director. But in when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross' job responsibilities to a newly created position — claims administration manager. That position was given to Lisa Kneeskern, *23 who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL's reallocation of his former job responsibilities to Kneeskern. In April Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee "because of such individual's age." (a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross' reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion). At the close of trial, and over FBL's objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL "demoted [him] to claims projec[t] coordinator" and that his "age was a motivating factor" in FBL's decision to demote him. App. 9-10. The jury was further instructed that Gross' age would qualify as a "`motivating factor,' if [it] played a part or a role in [FBL]'s decision to demote [him]." The jury was also instructed regarding FBL's burden of proof. According to the District Court, the "verdict must be for [FBL] if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age." The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price See In Price this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. e et seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations — i.e., a "mixed-motives" 244-2, (plurality opinion). The Price decision was splintered. Four Justices joined a plurality opinion, see Justices White and O'Connor separately concurred in the judgment, see (opinion of White, J.); (opinion of O'Connor, J.), and three Justices dissented, see (opinion of KENNEDY, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a "motivating" or a "`substantial'" factor in the employer's action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See (plurality opinion); (opinion of White, J.); (opinion of O'Connor, J.). Justice O'Connor further found that to shift the burden of persuasion to the employer, the employee must present "direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision." *2348 In accordance with Circuit precedent, the Court of Appeals identified Justice O'Connor's opinion as controlling. See ). Applying that standard, the Court of Appeals found that Gross needed to present "[d]irect evidence sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action." In the Court of Appeals' view, "direct evidence" is only that evidence that "show[s] a specific link between the alleged discriminatory animus and the challenged decision." Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer "`to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.'" (quoting Price (opinion of O'Connor, J.)). The Court of Appeals thus concluded that the District Court's jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor — not just "direct evidence" related to FBL's alleged consideration of age. See Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed only to determine whether Gross had carried his burden of "prov[ing] that age was the determining factor in FBL's employment action." See We granted certiorari, 555 U.S. and now vacate the decision of the Court of Appeals. II The parties have asked us to decide whether a plaintiff must "present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination " Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.[1] We hold that it does not. A Petitioner relies on this Court's decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA. *2349 In Price a plurality of the Court and two Justices concurring in the judgment determined that once a "plaintiff in a Title VII case proves that [the plaintiff's membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account." 490 U.S., ; see also (opinion of White, J.); (opinion of O'Connor, J.). But as we explained in Desert Palace, Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was "a motivating factor" for an adverse employment decision. See 42 U.S.C. e-2(m) (providing that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice" ); e-5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of e-2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we "must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination." Federal Express Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add e-2(m) and e-5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 115, ; 302, 88. We cannot ignore Congress' decision to amend Title VII's relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See Furthermore, as the Court has explained, "negative implications raised by disparate provisions are strongest" when the provisions were "considered simultaneously when the language raising the implication was inserted." As a result, the Court's interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price[2] *2350 B Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Engine Mfrs. The ADEA provides, in relevant part, that "[i]t shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." (a)(1) The words "because of" mean "by reason of: on account of." 1 Webster's Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining "because of" to mean "By reason of, on account of" (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining "because" to mean "by reason; on account"). Thus, the ordinary meaning of the ADEA's requirement that an employer took adverse action "because of" age is that age was the "reason" that the employer decided to act. See Hazen Paper (explaining that the claim "cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome" ). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision. See 12 (recognizing that the phrase, "by reason of," requires at least a showing of "but for" causation ); Safeco Ins. Co. of (observing that "[i]n common talk, the phrase `based on' indicates a but-for causal relationship and thus a necessary logical condition" and that the statutory phrase, "based on," has the same meaning as the phrase, "because of" ); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) ("An act or omission is not regarded as a cause of an event if the particular event would have occurred without it").[3] *2351 It follows, then, that under 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the "but-for" cause of the employer's adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. See Kentucky Retirement ; And nothing in the statute's text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is "silent on the allocation of the burden of persuasion," we "begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims." ; see also ("Absent some reason to believe that Congress intended otherwise, we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief" ). We have no warrant to depart from the general rule in this setting. Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the "but-for" cause of the challenged employer decision. See[4] III Finally, we reject petitioner's contention that our interpretation of the ADEA is controlled by Price which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.[5] In any event, it is far *2352 from clear that the Court would have the same approach were it to consider the question today in the first instance. Cf. 14 Penn Plaza LLC v. Pyett, 5 U.S. 129 S. Ct. 14, ; at Whatever the deficiencies of Price in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury, courts have found it particularly difficult to craft an instruction to explain its burden-shifting framework. See, e.g., ; (Flaum, J., dissenting) ("The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally"). Thus, even if Price was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., 53 L. Ed. 2d 8 ;[6] IV We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Stevens

dissenting

Gross v. FBL Financial Services, Inc.

2009-06-18

https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145857/

2008-074

The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et *2353 seq., makes it unlawful for an employer to discriminate against any employee "because of" that individual's age, § 623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The "but-for" causation standard endorsed by the Court today was advanced in Justice KENNEDY's dissenting opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 279, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. I The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.[1] Instead, the question arose for the first time in respondent's brief, which asked us to "overrule Price Waterhouse with respect to its application to the ADEA." Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: "`We would normally expect notice of an intent to make so far-reaching an argument in the respondent's opposition to a petition for certiorari, cf. this Court's Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.'" Alabama v. Shelton, 535 U.S. 654, 660, n. 3, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002) (quoting South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171, 119 S. Ct. 1180, 143 L. Ed. 2d 258 (1999)). Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.[2] Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress' intent. The ADEA provides that "[i]t shall be unlawful for an employer... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (emphasis added). As we recognized in Price Waterhouse when we construed the identical "because of" language of Title VII, see 42 U.S.C. § 2000e-2(a)(1) (making it unlawful for an employer "to fail or refuse to hire or to discharge any individual ... with respect to his compensation, terms, *2354 conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" (emphasis added)), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee. In Price Waterhouse, we concluded that the words "`because of' such individual's... sex ... mean that gender must be irrelevant to employment decisions." 490 U.S., at 240, 109 S. Ct. 1775 (plurality opinion); see also id., at 260, 109 S. Ct. 1775 (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.[3] We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff's sex into account. Id., at 244-245, 109 S. Ct. 1775 (plurality opinion). But this affirmative defense did not alter the meaning of "because of." As we made clear, when "an employer considers both gender and legitimate factors at the time of making a decision, that decision was `because of' sex." Id., at 241, 109 S. Ct. 1775; see also id., at 260, 109 S. Ct. 1775 (White, J., concurring in judgment). We readily rejected the dissent's contrary assertion. "To construe the words `because of' as colloquial shorthand for `but-for' causation," we said, "is to misunderstand them." Id., at 240, 109 S. Ct. 1775 (plurality opinion).[4] Today, however, the Court interprets the words "because of" in the ADEA "as colloquial shorthand for `but-for' causation." Ibid. That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII's language apply "with equal force in the context of age discrimination, for the substantive provisions of the ADEA `were derived in haec verba from Title VII.'" Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523 (1985) (quoting Lorillard v. Pons, 434 U.S. 575, 584, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973) (per curiam). For this reason, Justice KENNEDY's dissent in Price Waterhouse assumed the plurality's mixed-motives framework extended to the ADEA, see 490 U.S., at 292, 109 S. Ct. 1775, and the Courts of Appeals to have *2355 considered the issue unanimously have applied Price Waterhouseto ADEA claims.[5] The Court nonetheless suggests that applying Price Waterhouse would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993), that "[a disparate-treatment] claim `cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Ante, at 2350. The italicized phrase is at best inconclusive as to the meaning of the ADEA's "because of" language, however, as other passages in Hazen Paper Co. demonstrate. We also stated, for instance, that the ADEA "requires the employer to ignore an employee's age," id., at 612, 113 S. Ct. 1701 (emphasis added), and noted that "[w]hen the employer's decision is wholly motivated by factors other than age," there is no violation, id., at 611 (emphasis altered). So too, we indicated the "possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status," id., at 613, 113 S. Ct. 1701 — a classic mixed-motives scenario. Moreover, both Hazen Paper Co. and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). See, e.g., Reeves, 530 U.S., at 141-143, 120 S. Ct. 2097; Hazen Paper Co., 507 U.S., at 610, 113 S. Ct. 1701. This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II The conclusion that "because of" an individual's age means that age was a motivating factor in an employment decision is bolstered by Congress' reaction to Price Waterhouse in the 1991 Civil Rights Act. As part of its response to "a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws," H.R.Rep. No. 102-40, pt. 2, p. 2 (1991), U.S.Code Cong. & Admin.News 1991, p. 694 (hereinafter H.R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that an employer's same-decision showing would limit only a plaintiff's remedies. See § 2000e-5(g)(2)(B). Importantly, however, Congress ratified Price Waterhouse's interpretation of the plaintiff's burden of proof, rejecting the dissent's suggestion in that case that but-for causation was the proper standard. See *2356 § 2000e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.[6] But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price Waterhouse's construction of "because of" remains the governing law for ADEA claims. Our recent decision in Smith v. City of Jackson, 544 U.S. 228, 240, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005), is precisely on point, as we considered in that case the effect of Congress' failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that "the relevant 1991 amendments expanded the coverage of Title VII[but] did not amend the ADEA or speak to the subject of age discrimination," we held that "Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA." 544 U.S., at 240, 125 S. Ct. 1536 (discussing Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 733 (1989)); see also Meacham v. Knolls Atomic Power Laboratory, 554 U.S. ___, ___, 128 S. Ct. 2395, 2405-2406, 171 L. Ed. 2d 283 (2008). If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress' partial ratification of Price Waterhouse to argue against that case's precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price Waterhouse likewise must not apply because Congress effectively codified Price Waterhouse's holding in the amendments. Ante, at 2348-2349. This does not follow. To the contrary, the fact that Congress endorsed this Court's interpretation of the "because of" language in Price Waterhouse (even as it rejected the employer's affirmative defense to liability) provides all the more reason to adhere to that decision's motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g., H.R. Rep., pt. 2, at 17 ("When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions"); id., at 2 (stating that the Act "reaffirm[ed] that any reliance on prejudice in making employment decisions is illegal"); see also H.R. Rep., pt. 1, at 45; S.Rep. No. 101-315, pp. 6, 22 (1990). The 1991 amendments to Title VII also provide the answer to the majority's argument that the mixed-motives approach has proved unworkable. Ante, at 2351-2352. Because Congress has codified a mixed-motives *2357 framework for Title VII cases — the vast majority of antidiscrimination lawsuits — the Court's concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today's decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims. The Court's resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress' response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up — whether a mixed-motives jury instruction is ever proper in an ADEA case — is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). I would accordingly hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. The source of the direct-evidence debate is Justice O'Connor's opinion concurring in the judgment in Price Waterhouse. Writing only for herself, Justice O'Connor argued that a plaintiff should be required to introduce "direct evidence" that her sex motivated the decision before the plurality's mixed-motives framework would apply. 490 U.S., at 276, 109 S. Ct. 1775.[7] Many courts have treated Justice O'Connor's opinion in Price Waterhouse as controlling for both Title VII and ADEA mixed-motives cases in light of our statement in Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977), that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see supra, at 2354, n. 3; he disagreed only as to the type of evidence an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective evidence, he wrote separately to express his view that an employer's credible testimony could suffice. 490 U.S., at 261, 109 S. Ct. 1775. Because Justice White provided a fifth vote for the "rationale explaining the result" of the Price Waterhouse decision, Marks, 430 U.S., at 193, 97 S. Ct. 990, his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct evidence. Any questions raised by Price Waterhouse as to a direct evidence requirement were settled by this Court's unanimous decision in Desert Palace, in which we held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing *2358 the language of § 2000e-2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct evidence and that "Congress has been unequivocal when imposing heightened proof requirements." 539 U.S., at 99, 123 S. Ct. 2148. The statute's silence with respect to direct evidence, we held, meant that "we should not depart from the `[c]onventional rul[e] of civil litigation... [that] requires a plaintiff to prove his case by a preponderance of the evidence', ... using `direct or circumstantial evidence.'" Ibid. (quoting Price Waterhouse, 490 U.S., at 253, 109 S. Ct. 1775 (plurality opinion), and Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 75 L. Ed. 2d 403 (1983)). We also recognized the Court's consistent acknowledgment of the utility of circumstantial evidence in discrimination cases. Our analysis in Desert Palace applies with equal force to the ADEA. Cf. ante, at 2351-2352, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct evidence requirement, and we have specifically recognized the utility of circumstantial evidence in ADEA cases. See Reeves, 530 U.S., at 147, 120 S. Ct. 2097 (cited by Desert Palace, 539 U.S., at 99-100, 123 S. Ct. 2148). Moreover, in Hazen Paper Co., we held that an award of liquidated damages for a "willful" violation of the ADEA did not require proof of the employer's motivation through direct evidence, 507 U.S., at 615, 113 S. Ct. 1701, and we have similarly rejected the imposition of special evidentiary rules in other ADEA cases. See, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996). Desert Palace thus confirms the answer provided by the plurality and Justice White in Price Waterhouse: An ADEA plaintiff need not present direct evidence of discrimination to obtain a mixed-motives instruction. IV The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price Waterhouse and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent.

The Age Discrimination in Employment Act of 1967 (ADEA), et *2353 seq., makes it unlawful for an employer to discriminate against any employee "because of" that individual's age, 623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The "but-for" causation standard endorsed by the Court today was advanced in Justice KENNEDY's dissenting opinion in Price a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. e-2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court's interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct of age discrimination to obtain a mixed-motives instruction. I The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.[1] Instead, the question arose for the first time in respondent's brief, which asked us to "overrule Price with respect to its application to the ADEA." Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: "`We would normally expect notice of an intent to make so far-reaching an argument in the respondent's opposition to a petition for certiorari, cf. this Court's Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.'" Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.[2] Unfortunately, the majority's inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress' intent. The ADEA provides that "[i]t shall be unlawful for an employer. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1) As we recognized in Price when we construed the identical "because of" language of Title VII, see 42 U.S.C. e-2(a)(1) (making it unlawful for an employer "to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, *2354 conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin" ), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee. In Price we concluded that the words "`because of' such individual's. sex mean that gender must be irrelevant to employment decisions." (plurality opinion); see also (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.[3] We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff's sex into account. (plurality opinion). But this affirmative defense did not alter the meaning of "because of." As we made clear, when "an employer considers both gender and legitimate factors at the time of making a decision, that decision was `because of' sex." ; see also (White, J., concurring in judgment). We readily rejected the dissent's contrary assertion. "To construe the words `because of' as colloquial shorthand for `but-for' causation," we said, "is to misunderstand them." (plurality opinion).[4] Today, however, the Court interprets the words "because of" in the ADEA "as colloquial shorthand for `but-for' causation." That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII's language apply "with equal force in the context of age discrimination, for the substantive provisions of the ADEA `were derived in haec verba from Title VII.'" Trans World Airlines, See generally For this reason, Justice KENNEDY's dissent in Price assumed the plurality's mixed-motives framework extended to the ADEA, see and the Courts of Appeals to have *2355 considered the issue unanimously have applied Price to ADEA claims.[5] The Court nonetheless suggests that applying Price would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper that "[a disparate-treatment] claim `cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome.'" Ante, 350. The italicized phrase is at best inconclusive as to the meaning of the ADEA's "because of" language, however, as other passages in Hazen Paper demonstrate. We also stated, for instance, that the ADEA "requires the employer to ignore an employee's age," and noted that "[w]hen the employer's decision is wholly motivated by factors other than age," there is no violation, So too, we indicated the "possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status," — a classic mixed-motives scenario. Moreover, both Hazen Paper and on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas and Texas Dept. of Community See, e.g., -143, ; Hazen Paper 507 U.S., at This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II The conclusion that "because of" an individual's age means that age was a motivating factor in an employment decision is bolstered by Congress' reaction to Price in the 1991 Civil Rights Act. As part of its response to "a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws," H.R.Rep. No. 102-40, pt. 2, p. 2 (1991), U.S.Code Cong. & Admin.News 1991, p. 694 (hereinafter H.R. Rep.), Congress eliminated the affirmative defense to liability that Price had furnished employers and provided instead that an employer's same-decision showing would limit only a plaintiff's remedies. See e-5(g)(2)(B). Importantly, however, Congress ratified Price 's interpretation of the plaintiff's burden of proof, rejecting the dissent's suggestion in that case that but-for causation was the proper standard. See *2356 e-2(m) ("[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice"). Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.[6] But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price 's construction of "because of" remains the governing law for ADEA claims. Our recent decision in is precisely on point, as we considered in that case the effect of Congress' failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that "the relevant 1991 amendments expanded the coverage of Title VII[but] did not amend the ADEA or speak to the subject of age discrimination," we held that "Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA." 544 U.S., ); see also 5-6, L. Ed. 2d 283 If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress' partial ratification of Price to argue against that case's precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price likewise must not apply because Congress effectively codified Price 's holding in the amendments. Ante, 348-2349. This does not follow. To the contrary, the fact that Congress endorsed this Court's interpretation of the "because of" language in Price (even as it rejected the employer's affirmative defense to liability) provides all the more reason to adhere to that decision's motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g., H.R. Rep., pt. 2, at 17 ("When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions"); ; see also H.R. Rep., pt. 1, at 45; S.Rep. No. 101-315, pp. 6, 22 (1990). The 1991 amendments to Title VII also provide the answer to the majority's argument that the mixed-motives approach has proved unworkable. Ante, 351-2352. Because Congress has codified a mixed-motives *2357 framework for Title VII cases — the vast majority of antidiscrimination lawsuits — the Court's concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today's decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims. The Court's resurrection of the but-for causation standard is unwarranted. Price repudiated that standard 20 years ago, and Congress' response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up — whether a mixed-motives jury instruction is ever proper in an ADEA case — is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert I would accordingly hold that a plaintiff need not present direct of age discrimination to obtain a mixed-motives instruction. The source of the direct- debate is Justice O'Connor's opinion concurring in the judgment in Price Writing only for herself, Justice O'Connor argued that a plaintiff should be required to introduce "direct " that her sex motivated the decision before the plurality's mixed-motives framework would apply. 490 U.S., 76, that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Unlike the cases addressed, however, Price garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see 354, n. 3; he disagreed only as to the type of an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective he wrote separately to express his view that an employer's credible testimony could suffice. 490 U.S., 61, Because Justice White provided a fifth vote for the "rationale explaining the result" of the Price decision, 430 U.S., at his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct Any questions raised by Price as to a direct requirement were settled by this Court's unanimous decision in Desert in which we held that a plaintiff need not introduce direct to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing *2358 the language of e-2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct and that "Congress has been unequivocal when imposing heightened proof requirements." The statute's silence with respect to direct we held, meant that "we should not depart from the `[c]onventional rul[e] of civil litigation. [that] requires a plaintiff to prove his case by a preponderance of the ', using `direct or circumstantial'" (quoting Price 490 U.S., 53, (plurality opinion), and Postal Service Bd. of ). We also recognized the Court's consistent acknowledgment of the utility of circumstantial in discrimination cases. Our analysis in Desert applies with equal force to the ADEA. Cf. ante, 351-2352, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct requirement, and we have specifically recognized the utility of circumstantial in ADEA cases. See (cited by Desert -100, ). Moreover, in Hazen Paper we held that an award of liquidated damages for a "willful" violation of the ADEA did not require proof of the employer's motivation through direct ; Desert thus confirms the answer provided by the plurality and Justice White in Price : An ADEA plaintiff need not present direct of discrimination to obtain a mixed-motives instruction. IV The Court's endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent.

Justice Breyer

second_dissenting

Gross v. FBL Financial Services, Inc.

2009-06-18

https://www.courtlistener.com/opinion/145857/gross-v-fbl-financial-services-inc/

https://www.courtlistener.com/api/rest/v3/clusters/145857/

2008-074

I agree with Justice STEVENS that mixed-motive instructions are appropriate in the Age Discrimination in Employment Act context. And I join his opinion. The Court rejects this conclusion on the ground that the words "because of" require a plaintiff to prove that age was the "but-for" cause of his employer's adverse employment action. Ante, at 2350. But the majority does not explain why this is so. The words "because of" do not inherently require a showing of "but-for" causation, and I see no reason to read them to require such a showing. It is one thing to require a typical tort plaintiff to show "but-for" causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of "but-for" causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a "but-for" relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we *2359 ascribe motives, after an event, to an individual in light of the individual's thoughts and other circumstances present at the time of decision. In a case where we characterize an employer's actions as having been taken out of multiple motives, say, both because the employee was old and because he wore loud clothing, to apply "but-for" causation is to engage in a hypothetical inquiry about what would have happened if the employer's thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer. All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer's decision. And the fact that a jury has found that age did play a role in the decision justifies the use of the word "because," i.e., the employer dismissed the employee because of his age (and other things). See Price Waterhouse v. Hopkins, 490 U.S. 228, 239-242, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (plurality opinion). I therefore would see nothing wrong in concluding that the plaintiff has established a violation of the statute. But the law need not automatically assess liability in these circumstances. In Price Waterhouse, the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation. See id., at 242, 109 S. Ct. 1775; cf. ante, at 2356 (STEVENS, J., dissenting) (describing the Title VII framework). I can see nothing unfair or impractical about allocating the burdens of proof in this way. The instruction that the District Court gave seems appropriate and lawful. It says, in pertinent part: "Your verdict must be for plaintiff if all the following elements have been proved by the preponderance of the evidence: . . . . . "[The] plaintiff's age was a motivating factor in defendant's decision to demote plaintiff. "However, your verdict must be for defendant ... if it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age. . . . . . "As used in these instructions, plaintiff's age was `a motivating factor,' if plaintiff's age played a part or a role in the defendant's decision to demote plaintiff. However, plaintiff's age need not have been the only reason for defendant's decision to demote plaintiff." App. 9-10. For these reasons as well as for those set forth by Justice STEVENS, I respectfully dissent.

I agree with Justice STEVENS that mixed-motive instructions are appropriate in the Age Discrimination in Employment Act context. And I join his opinion. The Court rejects this conclusion on the ground that the words "because of" require a plaintiff to prove that age was the "but-for" cause of his employer's adverse employment action. Ante, at 2350. But the majority does not explain why this is so. The words "because of" do not inherently require a showing of "but-for" causation, and I see no reason to read them to require such a showing. It is one thing to require a typical tort plaintiff to show "but-for" causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of "but-for" causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a "but-for" relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we *2359 ascribe motives, after an event, to an individual in light of the individual's thoughts and other circumstances present at the time of decision. In a case where we characterize an employer's actions as having been taken out of multiple motives, say, both because the employee was old and because he wore loud clothing, to apply "but-for" causation is to engage in a hypothetical inquiry about what would have happened if the employer's thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer. All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer's decision. And the fact that a jury has found that age did play a role in the decision justifies the use of the word "because," i.e., the employer dismissed the employee because of his age (and other things). See Price I therefore would see nothing wrong in concluding that the plaintiff has established a violation of the statute. But the law need not automatically assess liability in these circumstances. In Price Waterhouse, the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation. See ; cf. ante, at 2356 (STEVENS, J., dissenting) (describing the Title VII framework). I can see nothing unfair or impractical about allocating the burdens of proof in this way. The instruction that the District Court gave seems appropriate and lawful. It says, in pertinent part: "Your verdict must be for plaintiff if all the following elements have been proved by the preponderance of the evidence: "[The] plaintiff's age was a motivating factor in defendant's decision to demote plaintiff. "However, your verdict must be for defendant if it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age. "As used in these instructions, plaintiff's age was `a motivating factor,' if plaintiff's age played a part or a role in the defendant's decision to demote plaintiff. However, plaintiff's age need not have been the only reason for defendant's decision to demote plaintiff." App. 9-10. For these reasons as well as for those set forth by Justice STEVENS, I respectfully dissent.

Justice Thomas

majority

Swierkiewicz v. Sorema NA

2002-02-26

https://www.courtlistener.com/opinion/118482/swierkiewicz-v-sorema-na/

https://www.courtlistener.com/api/rest/v3/clusters/118482/

2001-024

This case presents the question whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth by this Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We hold that an employment discrimination complaint need not include such facts and instead must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). I Petitioner Akos Swierkiewicz is a native of Hungary, who at the time of his complaint was 53 years old.[1] In April 1989, petitioner began working for respondent Sorema N. A., a reinsurance company headquartered in New York and principally owned and controlled by a French parent corporation. Petitioner was initially employed in the position of senior vice president and chief underwriting officer (CUO). Nearly six years later, François M. Chavel, respondent's Chief Executive Officer, demoted petitioner to a marketing and services position and transferred the bulk of his underwriting responsibilities to Nicholas Papadopoulo, a 32-yearold who, like Mr. Chavel, is a French national. About a year later, Mr. Chavel stated that he wanted to "energize" the underwriting department and appointed Mr. Papadopoulo as CUO. Petitioner claims that Mr. Papadopoulo had only one year of underwriting experience at the time he was promoted, and therefore was less experienced and less qualified to be CUO than he, since at that point he had 26 years of experience in the insurance industry. *509 Following his demotion, petitioner contends that he "was isolated by Mr. Chavel . . . excluded from business decisions and meetings and denied the opportunity to reach his true potential at SOREMA." App. 26. Petitioner unsuccessfully attempted to meet with Mr. Chavel to discuss his discontent. Finally, in April 1997, petitioner sent a memo to Mr. Chavel outlining his grievances and requesting a severance package. Two weeks later, respondent's general counsel presented petitioner with two options: He could either resign without a severance package or be dismissed. Mr. Chavel fired petitioner after he refused to resign. Petitioner filed a lawsuit alleging that he had been terminated on account of his national origin in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S. C. § 2000e et seq. (1994 ed. and Supp. V), and on account of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S. C. § 621 et seq. (1994 ed. and Supp. V). App. 28. The United States District Court for the Southern District of New York dismissed petitioner's complaint because it found that he "ha[d] not adequately alleged a prima facie case, in that he ha[d] not adequately alleged circumstances that support an inference of discrimination." Id., at 42. The United States Court of Appeals for the Second Circuit affirmed the dismissal, relying on its settled precedent, which requires a plaintiff in an employment discrimination complaint to allege facts constituting a prima facie case of discrimination under the framework set forth by this Court in McDonnell Douglas, supra, at 802. See, e. g., Tarshis v. Riese Organization, 211 F.3d 30, 35-36, 38 (CA2 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152-153 (CA2 1998). The Court of Appeals held that petitioner had failed to meet his burden because his allegations were "insufficient as a matter of law to raise an inference of discrimination." 5 Fed. Appx. 63, 65 (CA2 2001). We granted certiorari, 533 U.S. 976 (2001), to resolve a split among the Courts *510 of Appeals concerning the proper pleading standard for employment discrimination cases,[2] and now reverse. II Applying Circuit precedent, the Court of Appeals required petitioner to plead a prima facie case of discrimination in order to survive respondent's motion to dismiss. See 5 Fed. Appx., at 64-65. In the Court of Appeals' view, petitioner was thus required to allege in his complaint: (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination. Ibid.; cf. McDonnell Douglas, 411 U. S., at 802; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-254, n. 6 (1981). The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement. In McDonnell Douglas, this Court made clear that "[t]he critical issue before us concern[ed] the order and allocation of proof in a private, non-class action challenging employment discrimination." 411 U.S., at 800 (emphasis added). In subsequent cases, this Court has reiterated that the prima facie case relates to the employee's burden of presenting evidence that raises an inference of discrimination. See Burdine, supra, at 252-253 ("In [McDonnell Douglas,] we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of *511 discrimination" (footnotes omitted)); 450 U.S., at 255, n. 8 ("This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law"). This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss. For instance, we have rejected the argument that a Title VII complaint requires greater "particularity," because this would "too narrowly constric[t] the role of the pleadings." McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283, n. 11 (1976). Consequently, the ordinary rules for assessing the sufficiency of a complaint apply. See, e. g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims"). In addition, under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination"). Under the Second Circuit's heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to *512 survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits ifdirect evidence of discrimination is discovered. Moreover, the precise requirements of a prima facie case can vary depending on the context and were "never intended to be rigid, mechanized, or ritualistic." Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); see also McDonnell Douglas, supra, at 802, n. 13 ("[T]he specification . . . of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations"); Teamsters v. United States, 431 U.S. 324, 358 (1977) (noting that this Court "did not purport to create an inflexible formulation" for a prima facie case); Ring v. First Interstate Mortgage, Inc., 984 F.2d 924, 927 (CA8 1993) ("[T]o measure a plaintiff's complaint against a particular formulation of the prima facie case at the pleading stage is inappropriate"). Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases. Furthermore, imposing the Court of Appeals' heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Such a statement must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. See id., at 47-48; Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-169 (1993). "The provisions for discovery *513 are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202, p. 76 (2d ed. 1990). Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions. Rule 9(b), for example, provides for greater particularity in all averments of fraud or mistake.[3] This Court, however, has declined to extend such exceptions to other contexts. In Leatherman we stated: "[T]he Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983. Expressio unius est exclusio alterius. " 507 U.S., at 168. Just as Rule 9(b) makes no mention of municipal liability under Rev. Stat. § 1979, 42 U.S. C. § 1983 (1994 ed., Supp. V), neither does it refer to employment discrimination. Thus, complaints in these cases, as in most others, must satisfy only the simple requirements of Rule 8(a).[4] Other provisions of the Federal Rules of Civil Procedure are inextricably linked to Rule 8(a)'s simplified notice pleading standard. Rule 8(e)(1) states that "[n]o technical forms of pleading or motions are required," and Rule 8(f) provides *514 that "[a]ll pleadings shall be so construed as to do substantial justice." Given the Federal Rules' simplified standard for pleading, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. See Conley, supra, at 48 ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits"). Applying the relevant standard, petitioner's complaint easily satisfies the requirements of Rule 8(a) because it gives respondent fair notice of the basis for petitioner's claims. Petitioner alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA. App. 28. His complaint detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination. Id., at 24-28. These allegations give respondent fair notice of what petitioner's claims are and the grounds upon which they rest. See Conley, supra, at 47. In addition, they state claims upon which relief could be granted under Title VII and the ADEA. Respondent argues that allowing lawsuits based on conclusory allegations of discrimination to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits. Brief for Respondent 34-40. Whatever *515 the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits. A requirement of greater specificity for particular claims is a result that "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, supra, at 168. Furthermore, Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits. "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer, 416 U. S., at 236. For the foregoing reasons, we hold that an employment discrimination plaintiff need not plead a prima facie case of discrimination and that petitioner's complaint is sufficient to survive respondent's motion to dismiss. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case presents the question whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth by this Court in McDonnell We hold that an employment discrimination complaint need not include such facts and instead must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). I Petitioner Akos Swierkiewicz is a native of Hungary, who at the time of his complaint was 53 years old.[1] In April 1989, petitioner began working for respondent Sorema N. A., a reinsurance company headquartered in New York and principally owned and controlled by a French parent corporation. Petitioner was initially employed in the position of senior vice president and chief underwriting officer (CUO). Nearly six years later, François M. Chavel, respondent's Chief Executive Officer, demoted petitioner to a marketing and services position and transferred the bulk of his underwriting responsibilities to Nicholas Papadopoulo, a 32-yearold who, like Mr. Chavel, is a French national. About a year later, Mr. Chavel stated that he wanted to "energize" the underwriting department and appointed Mr. Papadopoulo as CUO. Petitioner claims that Mr. Papadopoulo had only one year of underwriting experience at the time he was promoted, and therefore was less experienced and less qualified to be CUO than he, since at that point he had 26 years of experience in the insurance industry. *509 Following his demotion, petitioner contends that he "was isolated by Mr. Chavel excluded from business decisions and meetings and denied the opportunity to reach his true potential at SOREMA." App. 26. Petitioner unsuccessfully attempted to meet with Mr. Chavel to discuss his discontent. Finally, in April 1997, petitioner sent a memo to Mr. Chavel outlining his grievances and requesting a severance package. Two weeks later, respondent's general counsel presented petitioner with two options: He could either resign without a severance package or be dismissed. Mr. Chavel fired petitioner after he refused to resign. Petitioner filed a lawsuit alleging that he had been terminated on account of his national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. e et seq. (1994 ed. and Supp. V), and on account of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S. C. 621 et seq. (1994 ed. and Supp. V). App. 28. The United States District Court for the Southern District of New York dismissed petitioner's complaint because it found that he "ha[d] not adequately alleged a prima facie case, in that he ha[d] not adequately alleged circumstances that support an inference of discrimination." The United States Court of Appeals for the Second Circuit affirmed the dismissal, relying on its settled precedent, which requires a plaintiff in an employment discrimination complaint to allege facts constituting a prima facie case of discrimination under the framework set forth by this Court in McDonnell See, e. g., ; The Court of Appeals held that petitioner had failed to meet his burden because his allegations were "insufficient as a matter of law to raise an inference of discrimination." We granted certiorari, to resolve a split among the Courts *510 of Appeals concerning the proper pleading standard for employment discrimination cases,[2] and now reverse. II Applying Circuit precedent, the Court of Appeals required petitioner to plead a prima facie case of discrimination in order to survive respondent's motion to dismiss. See -. In the Court of Appeals' view, petitioner was thus required to allege in his complaint: (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination. Ibid.; cf. McDonnell 411 U. S., ; Texas Dept. of Community The prima facie case under McDonnell however, is an evidentiary standard, not a pleading requirement. In McDonnell this Court made clear that "[t]he critical issue before us concern[ed] the order and allocation of proof in a private, non-class action challenging employment discrimination." In subsequent cases, this Court has reiterated that the prima facie case relates to the employee's burden of presenting evidence that raises an inference of discrimination. See ("In [McDonnell] we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of *511 discrimination" (footnotes omitted)); n. 8 This Court has never indicated that the requirements for establishing a prima facie case under McDonnell also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss. For instance, we have rejected the argument that a Title VII complaint requires greater "particularity," because this would "too narrowly constric[t] the role of the pleadings." Consequently, the ordinary rules for assessing the sufficiency of a complaint apply. See, e. g., ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims"). In addition, under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell framework does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. See Trans World Airlines, ("[T]he McDonnell test is inapplicable where the plaintiff presents direct evidence of discrimination"). Under the Second Circuit's heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to *512 survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits ifdirect evidence of discrimination is discovered. Moreover, the precise requirements of a prima facie case can vary depending on the context and were "never intended to be rigid, mechanized, or ritualistic." Furnco Constr. ; see also McDonnell n. 13 ; ; Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases. Furthermore, imposing the Court of Appeals' heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Such a statement must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. See at -48; "The provisions for discovery *513 are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court." 5 C. Wright & A. Miller, Federal Practice and Procedure 1202, p. 76 (2d ed. 1990). Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions. Rule 9(b), for example, provides for greater particularity in all averments of fraud or mistake.[3] This Court, however, has declined to extend such exceptions to other contexts. In we stated: "[T]he Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under 1983. Expressio unius est exclusio alterius. " Just as Rule 9(b) makes no mention of municipal liability under Rev. Stat. 1979, 42 U.S. C. 1983 (1994 ed., Supp. V), neither does it refer to employment discrimination. Thus, complaints in these cases, as in most others, must satisfy only the simple requirements of Rule 8(a).[4] Other provisions of the Federal Rules of Civil Procedure are inextricably linked to Rule 8(a)'s simplified notice pleading standard. Rule 8(e)(1) states that "[n]o technical forms of pleading or motions are required," and Rule 8(f) provides *514 that "[a]ll pleadings shall be so construed as to do substantial justice." Given the Federal Rules' simplified standard for pleading, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. See Applying the relevant standard, petitioner's complaint easily satisfies the requirements of Rule 8(a) because it gives respondent fair notice of the basis for petitioner's claims. Petitioner alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA. App. 28. His complaint detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination. These allegations give respondent fair notice of what petitioner's claims are and the grounds upon which they rest. See at In addition, they state claims upon which relief could be granted under Title VII and the ADEA. Respondent argues that allowing lawsuits based on conclusory allegations of discrimination to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits. Brief for Respondent 34-40. Whatever *515 the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits. A requirement of greater specificity for particular claims is a result that "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Furthermore, Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits. "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." 416 U. S., at For the foregoing reasons, we hold that an employment discrimination plaintiff need not plead a prima facie case of discrimination and that petitioner's complaint is sufficient to survive respondent's motion to dismiss. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

majority

Bogan v. Scott-Harris

1998-03-03

https://www.courtlistener.com/opinion/118178/bogan-v-scott-harris/

https://www.courtlistener.com/api/rest/v3/clusters/118178/

1997-034

It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities. In this case, petitioners argue that they, as local officials performing legislative functions, are entitled to the same protection. They further argue that their acts of introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities. We agree on both counts and therefore reverse the judgment below. I Respondent Janet Scott-Harris was administrator of the Department of Health and Human Services (DHHS) for the city of Fall River, Massachusetts, from 1987 to 1991. In 1990, respondent received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After respondent prepared termination charges against Biltcliffe, Biltcliffe used her political connections to press her case with several state and local officials, including *47 petitioner Marilyn Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges against Biltcliffe and ultimately accepted a settlement proposal under which Biltcliffe would be suspended without pay for 60 days. Petitioner Daniel Bogan, the mayor of Fall River, thereafter substantially reduced the punishment. While the charges against Biltcliffe were pending, Mayor Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all municipal employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee. The city council ordinance committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2, with petitioner Roderick among those voting in favor. Bogan signed the ordinance into law. Respondent then filed suit under Rev. Stat. § 1979, 42 U.S. C. § 1983, against the city, Bogan, Roderick, and several other city officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The District Court denied Bogan's and Roderick's motions to dismiss on the ground of legislative immunity, and the case proceeded to trial. Scott-Harris v. City of Fall River, et al., Civ. 91-12057—PBS (Mass., Jan. 27, 1995), App. to Pet. for Cert. 1. The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on respondent's First Amendment claim, concluding that respondent's constitutionally protected speech was a substantial or motivating factor in the elimination *48 of her position.[1] On a motion for judgment notwithstanding the verdict, the District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral, legislative elimination of a position which incidentally resulted in the termination of plaintiff." Id., at 20. The United States Court of Appeals for the First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan. Scott-Harris v. Fall River, 134 F.3d 427 (1997).[2] Although the court concluded that petitioners have "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," id., at 440, it held that their challenged conduct was not "legislative," id., at 441. Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual [respondent] in the decision-making calculus." Ibid. We granted certiorari. 520 U.S. 1263 (1997). II The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots *49 in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." Tenney v. Brandhove, 341 U.S. 367, 372 (1951). The Federal Constitution, the Constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U. S. Const., Art. I, § 6; Tenney, supra, at 372-375. Recognizing this venerable tradition, we have held that state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities. See Tenney, supra (state legislators); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979) (regional legislators);[3] see also Kilbourn v. Thompson, 103 U.S. 168, 202-204 (1881) (interpreting the federal Speech and Debate Clause, U. S. Const., Art. I, § 6, to provide similar immunity to Members of Congress). We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of § 1983 to "impinge on a tradition so well grounded in history and reason." Tenney, supra, at 376. Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under § 1983 for their legislative activities. The common law at the time § 1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York's highest court, for example, held that municipal aldermen were immune from suit for *50 their discretionary decisions. Wilson v. New York, 1 Denio 595 (1845). The court explained that when a local legislator exercises discretionary powers, he "is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done." Id., at 599.[4] These principles, according to the court, were "too familiar and well settled to require illustration or authority." Id., at 599-600. Shortly after § 1983 was enacted, the Mississippi Supreme Court reached a similar conclusion, holding that town aldermen could not be held liable under state law for their role in the adoption of an allegedly unlawful ordinance. Jones v. Loving, 55 Miss. 109, 30 Am. Rep. 508 (1877). The court explained that "[i]t certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." Id., at 111, 30 Am. Rep., at 509. The court thus concluded that "[w]henever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with *51 all the immunities of government, and are exempt from all liability for their mistaken use." Ibid. Treatises of that era confirm that this was the pervasive view. A leading treatise on municipal corporations explained that "[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into." 1 J. Dillon, Law of Municipal Corporations § 313, pp. 326-327 (3d ed. 1881) (emphasis in original). Thomas Cooley likewise noted in his influential treatise on the law of torts that the "rightful exemption" of legislators from liability was "very plain" and applied to members of "inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like." Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law § 744 (1889) (noting that municipal legislators were immune for their legislative functions); Mechem §§ 644-646 (same); Throop, supra n. 4, § 709, at 671 (same). Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e. g., Morris v. The People, 3 Denio 381, 395 (N. Y. 1846) (noting that the duty was "of a ministerial character only"); Caswell v. Allen, 7 Johns. 63, 68 (N. Y. 1810) (holding supervisors liable because the act was "mandatory" and "[n]o discretion appear[ed] to [have been] given to the supervisors"). Respondent's heavy reliance on our decision in Amy v. Supervisors, 11 Wall. 136 (1871), is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. Id., at 138 ("The rule is well settled, that where the law requires *52 absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct"). The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e. g., Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem § 647 (same). Absolute immunity for local legislators under § 1983 finds support not only in history, but also in reason. See Tenney v. Brandhove, 341 U. S., at 376 (stating that Congress did not intend for § 1983 to "impinge on a tradition so well grounded in history and reason"). The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See Spallone v. United States, 493 U.S. 265, 279 (1990) (noting, in the context of addressing local legislative action, that "any restriction on a legislator's freedom undermines the `public good' by interfering with the rights of the people to representation in the democratic process"); see also Kilbourn v. Thompson, 103 U. S., at 201-204 (federal legislators); Tenney, supra, at 377 (state legislators); Lake Country Estates, 440 U. S., at 405 (regional legislators). Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See Tenney, supra, at 377 (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). *53 Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity. Lake Country Estates, supra, at 405, n. 29 (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978)). And, of course, the ultimate check on legislative abuse—the electoral process—applies with equal force at the local level, where legislators are often more closely responsible to the electorate. Cf. Tenney, supra, at 378 (stating that "[s]elfdiscipline and the voters must be the ultimate reliance for discouraging or correcting such abuses"). Any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by our opinion in Lake Country Estates. There, we held that members of an interstate regional planning agency were entitled to absolute legislative immunity. Bereft of any historical antecedent to the regional agency, we relied almost exclusively on Tenney `s description of the purposes of legislative immunity and the importance of such immunity in advancing the "public good." Although we expressly noted that local legislators were not at issue in that case, see Lake Country Estates, 440 U. S., at 404, n. 26, we considered the regional legislators at issue to be the functional equivalents of local legislators, noting that the regional agency was "comparable to a county or municipality" and that the function of the regional agency, regulation of land use, was "traditionally a function performed by local governments." Id., at 401-402.[5] Thus, we now make explicit what was implicit *54 in our precedents: Local legislators are entitled to absolute immunity from § 1983 liability for their legislative activities. III Absolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity." Tenney, supra, at 376. The Court of Appeals held that petitioners' conduct in this case was not legislative because their actions were specifically targeted at respondent. Relying on the jury's finding that respondent's constitutionally protected speech was a substantial or motivating factor behind petitioners' conduct, the court concluded that petitioners necessarily "relied on facts relating to a particular individual" and "devised an ordinance that targeted [respondent] and treated her differently from other managers employed by the City." 134 F.3d, at 441. Although the Court of Appeals did not suggest that intent or motive can overcome an immunity defense for activities that are, in fact, legislative, the court erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative. Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. The privilege of absolute immunity "would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Ten- *55 ney, 341 U. S., at 377 (internal quotation marks omitted). Furthermore, it simply is "not consonant with our scheme of government for a court to inquire into the motives of legislators." Ibid. We therefore held that the defendant in Tenney had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights." Id., at 371 (internal quotation marks omitted). This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners' actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719, 731-734 (1980); Bogan's actions were legislative because they were integral steps in the legislative process. Cf. Edwards v. United States, 286 U.S. 482, 490 (1932) (noting "the legislative character of the President's function in approving or disapproving bills"); Smiley v. Holm, 285 U.S. 355, 372-373 (1932) (recognizing that a Governor's signing or vetoing of a bill constitutes part of the legislative process). Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policy making decision implicating the budgetary priorities *56 of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed "in a field where legislators traditionally have power to act." Tenney, supra, at 379. Thus, petitioners' activities were undoubtedly legislative. * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed.[6] It is so ordered.

It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities. In this case, petitioners argue that they, as local officials performing legislative functions, are entitled to the same protection. They further argue that their acts of introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities. We agree on both counts and therefore reverse the judgment below. I Respondent Janet Scott-Harris was administrator of the Department of Health and Human Services (DHHS) for the city of Fall River, Massachusetts, from 1987 to 1991. In 1990, respondent received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After respondent prepared termination charges against Biltcliffe, Biltcliffe used her political connections to press her case with several state and local officials, including *47 petitioner Marilyn Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges against Biltcliffe and ultimately accepted a settlement proposal under which Biltcliffe would be suspended without pay for 60 days. Petitioner Daniel Bogan, the mayor of Fall River, thereafter substantially reduced the punishment. While the charges against Biltcliffe were pending, Mayor Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all municipal employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee. The city council ordinance committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2, with petitioner Roderick among those voting in favor. Bogan signed the ordinance into law. Respondent then filed suit under Rev. Stat. 1979, 42 U.S. C. 1983, against the city, Bogan, Roderick, and several other city officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The District Court denied Bogan's and Roderick's motions to dismiss on the ground of legislative immunity, and the case proceeded to trial. Scott-Harris v. City of Fall River, et al., Civ. 91-12057—PBS (Mass., Jan. 27, 1995), App. to Pet. for Cert. 1. The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on respondent's First Amendment claim, concluding that respondent's constitutionally protected speech was a substantial or motivating factor in the elimination *48 of her position.[1] On a motion for judgment notwithstanding the verdict, the District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral, legislative elimination of a position which incidentally resulted in the termination of plaintiff." The United States Court of Appeals for the First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan.[2] Although the court concluded that petitioners have "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," it held that their challenged conduct was not "legislative," Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual [respondent] in the decision-making calculus." We granted certiorari. II The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots *49 in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." The Federal Constitution, the Constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U. S. Const., Art. I, 6; at -375. Recognizing this venerable tradition, we have held that state and regional legislators are entitled to absolute immunity from liability under 1983 for their legislative activities. See ; Lake Country ;[3] see also (interpreting the federal Speech and Debate Clause, U. S. Const., Art. I, 6, to provide similar immunity to Members of Congress). We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of 1983 to "impinge on a tradition so well grounded in history and reason." Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under 1983 for their legislative activities. The common law at the time 1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York's highest court, for example, held that municipal aldermen were immune from suit for *50 their discretionary decisions. The court explained that when a local legislator exercises discretionary powers, he "is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done."[4] These principles, according to the court, were "too familiar and well settled to require illustration or authority." -600. Shortly after 1983 was enacted, the Mississippi Supreme Court reached a similar conclusion, holding that town aldermen could not be held liable under state law for their role in the adoption of an allegedly unlawful ordinance. The court explained that "[i]t certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." The court thus concluded that "[w]henever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with *51 all the immunities of government, and are exempt from all liability for their mistaken use." Treatises of that era confirm that this was the pervasive view. A leading treatise on municipal corporations explained that "[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into." 1 J. Dillon, Law of Municipal Corporations 313, pp. 326-327 (emphasis in original). Thomas Cooley likewise noted in his influential treatise on the law of torts that the "rightful exemption" of legislators from liability was "very plain" and applied to members of "inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like." Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law 744 (1889) (noting that municipal legislators were immune for their legislative functions); Mechem 644-646 (same); 709, at 671 (same). Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e. g., ; Respondent's heavy reliance on our decision in is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e. g., Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem 647 (same). Absolute immunity for local legislators under 1983 finds support not only in history, but also in reason. See 341 U. S., (stating that Congress did not intend for 1983 to "impinge on a tradition so well grounded in history and reason"). The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See ; see also U. S., 1-204 (federal legislators); ; Lake Country Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See *53 Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity. Lake Country n. 29 ). And, of course, the ultimate check on legislative abuse—the electoral process—applies with equal force at the local level, where legislators are often more closely responsible to the electorate. Cf. Any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by our opinion in Lake Country There, we held that members of an interstate regional planning agency were entitled to absolute legislative immunity. Bereft of any historical antecedent to the regional agency, we relied almost exclusively on `s description of the purposes of legislative immunity and the importance of such immunity in advancing the "public good." Although we expressly noted that local legislators were not at issue in that case, see Lake Country n. 26, we considered the regional legislators at issue to be the functional equivalents of local legislators, noting that the regional agency was "comparable to a county or municipality" and that the function of the regional agency, regulation of land use, was "traditionally a function performed by local governments."[5] Thus, we now make explicit what was implicit *54 in our precedents: Local legislators are entitled to absolute immunity from 1983 liability for their legislative activities. III Absolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity." The Court of Appeals held that petitioners' conduct in this case was not legislative because their actions were specifically targeted at respondent. Relying on the jury's finding that respondent's constitutionally protected speech was a substantial or motivating factor behind petitioners' conduct, the court concluded that petitioners necessarily "relied on facts relating to a particular individual" and "devised an ordinance that targeted [respondent] and treated her differently from other managers employed by the City." 134 F.3d, Although the Court of Appeals did not suggest that intent or motive can overcome an immunity defense for activities that are, in fact, legislative, the court erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative. Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. The privilege of absolute immunity "would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Ten- *55 341 U. S., Furthermore, it simply is "not consonant with our scheme of government for a court to inquire into the motives of legislators." We therefore held that the defendant in had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights." This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners' actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of ; Bogan's actions were legislative because they were integral steps in the legislative process. Cf. ; -373 Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policy making decision implicating the budgetary priorities *56 of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed "in a field where legislators traditionally have power to act." Thus, petitioners' activities were undoubtedly legislative. * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed.[6] It is so ordered.

Justice Alito

majority

Nielsen v. Preap

2019-03-19

https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/

https://www.courtlistener.com/api/rest/v3/clusters/4601079/

2018-010

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being de- cided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not en- danger others and would not flee if released from custody. Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dan- gerous crimes and those who have connections to terror- ism. Under a statutory provision enacted in 1996, 110 2 NIELSEN v. PREAP Opinion of the Court Stat. 3009–585, 8 U.S. C. §1226(c), these aliens must be arrested “when [they are] released” from custody on crim- inal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved. In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time— according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit’s interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings. I A Under federal immigration law, aliens present in this country may be removed if they fall “within one or more . . . classes of deportable aliens.” 8 U.S. C. §1227(a). In these cases, we focus on two provisions governing the arrest, detention, and release of aliens who are believed to be subject to removal. The first provision, §1226(a),1 applies to most such —————— 1 This provision states: “(a) Arrest, detention, and release “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General— “(1) may continue to detain the arrested alien; and “(2) may release the alien on— “(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or Cite as: 586 U. S. ____ (2019) 3 Opinion of the Court aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with deten- tion. The first sentence empowers the Secretary of Home- land Security2 to arrest and hold an alien “pending a decision on whether the alien is to be removed from the United States.” The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immi- gration judge (both exercising power delegated by the Secretary), see 8 CFR §§236.1(c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018); and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. See §§1003.19(a), 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37 (BIA 2006). But while 8 U.S. C. §1226(a) generally permits an alien to seek release in this way, that provi- sion’s sentence on release states that all this is subject to an exception that is set out in §1226(c). Section 1226(c) was enacted as part of the Illegal Immi- gration Reform and Immigrant Responsibility Act of 1996, and it sprang from a “concer[n] that deportable criminal —————— “(B) conditional parole; but “(3) may not provide the alien with work authorization (including an ‘employment authorized’ endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.” 2 We replace “Attorney General” with “Secretary” because Congress has empowered the Secretary to enforce the Immigration and National- ity Act, 8 U.S. C. §1101 et seq., though the Attorney General retains the authority to administer removal proceedings and decide relevant questions of law. See, e.g., 6 U.S. C. §§202(3), 251, 271(b), 542 note, 557; 8 U.S. C. §§1103(a)(1) and (g), 1551 note. 4 NIELSEN v. PREAP Opinion of the Court aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” Demore v. Kim, 538 U.S. 510, 513 (2003). To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole. Section 1226(c) consists of two paragraphs, one on the decision to take an alien into “[c]ustody” and another on the alien’s subsequent “[r]elease.”3 The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories “into custody” “when the alien is released” from criminal custody. The second paragraph (on release from immigration custody) states that “an alien described in paragraph (1)” may be released “only if [the Secretary] decides” that release is “necessary to provide protection” for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not impli- cated in the present cases. The categories of predicates for mandatory detention identified in subparagraphs (A)–(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)— e.g., close relatives of terrorists and those who are thought likely to engage in terrorist activity, see 8 U.S. C. §1182(a)(3)(B)(i)(IX)—may never have been charged with any crime in this country.4 Still, since the vast majority of —————— 3 The full text of §1226(c) is set out infra, at 10–11. 4 Nevertheless,such cases appear to be rare. See Straker v. Jones, 986 F. Supp. 2d 345, 357, n. 8 (SDNY 2013) (citing Gomez v. Napoli- tano, 2012 U. S. App. LEXIS 27076 (CA2, June 5, 2012)). But see Alafyouny v. Chertoff, 2006 WL 1581959, *3, *24 (ND Tex., May 19, Cite as: 586 U. S. ____ (2019) 5 Opinion of the Court mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)–(D) collectively as “criminal aliens.” The Board of Immigration Appeals has held that subsec- tion (c)(2), which requires the detention of aliens “de- scribed in” subsection (c)(1), applies to all aliens who fall within subparagraphs (A)–(D), whether or not they were arrested immediately “when [they were] released” from criminal custody. Matter of Rojas, 23 I. & N. Dec. 117 (BIA 2001) (en banc). B Respondents in the two cases before us are aliens who were detained under §1226(c)(2)’s mandatory-detention requirement—and thus denied a bond hearing—pending a decision on their removal. See Preap v. Johnson, 831 F.3d 1193 (CA9 2016); Khoury v. Asher, 667 Fed. Appx. 966 (CA9 2016). Though all respondents had been convicted of criminal offenses covered in §§1226(c)(1)(A)–(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later. Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under §1226(c). Though he was released from criminal custody in 2006, immigration officials did not detain him until 2013, when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a §1226(c) predicate —————— 2006) (an alien was subject to mandatory detention based on a deter- mination that the alien had solicited funds for a terrorist group). 6 NIELSEN v. PREAP Opinion of the Court offense. Preap, Magdaleno, and Padilla filed habeas peti- tions and a class-action complaint alleging that because they were not arrested “immediately” after release from criminal custody, they are exempt from mandatory deten- tion under §1226(c) and are entitled to a bond hearing to determine if they should be released pending a decision on their status. Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California “ ‘who are or will be subjected to mandatory detention under 8 U.S. C. section 1226(c) and who were not or will not have been taken into custody by the government im- mediately upon their release from criminal custody for a [s]ection 1226(c)(1) offense.’ ” 831 F.3d, at 1198 (emphasis added). The District Court granted a preliminary injunc- tion against the mandatory detention of the members of this class, holding that criminal aliens are exempt from mandatory detention under §1226(c) (and are thus entitled to a bond hearing) unless they are arrested “ ‘when [they are] released,’ and no later.” Preap v. Johnson, 303 F. R. D. 566, 577 (ND Cal. 2014) (quoting 8 U.S. C. §1226(c)(1)). The Court of Appeals for the Ninth Circuit affirmed. Khoury, the other case now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district “who were sub- jected to mandatory detention under 8 U.S. C. §1226(c) even though they were not detained immediately upon their release from criminal custody.” 667 Fed. Appx., at 967. The District Court granted summary judgment for respondents, and the Ninth Circuit again affirmed, citing its decision on the same day in Preap. Because Preap and Khoury created a split with four Cite as: 586 U. S. ____ (2019) 7 Opinion Opinion of of the Court ALITO, J. other Courts of Appeals, we granted certiorari to review the Ninth Circuit’s ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under §1226(c). 583 U. S. ___ (2018). We now reverse. II Before addressing the merits of the Court of Appeals’ interpretation, we resolve four questions regarding our jurisdiction to hear these cases. The first potential hurdle concerns §1226(e), which states: “The [Secretary’s] discretionary judgment regarding the application of [§1226] shall not be subject to re- view. No court may set aside any action or decision by the [Secretary] under this section regarding the de- tention or release of any alien or the grant, revocation, or denial of bond or parole.” (Emphasis added.) As we have held, this limitation applies only to “discre- tionary” decisions about the “application” of §1226 to particular cases. It does not block lawsuits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (slip op., at 11–12) (quoting Demore, 538 U.S., at 517). And the general extent of the Government’s authority under §1226(c) is precisely the issue here. Respondents’ argument is not that the Gov- ernment exercised its statutory authority in an unreason- able fashion. Instead, they dispute the extent of the statu- tory authority that the Government claims. Because this claim of authority does not constitute a mere “discretion- ary” “application” of the relevant statute, our review is not barred by §1226(e). Nor are we stripped of jurisdiction by §1252(b)(9), which provides: 8 NIELSEN v. PREAP Opinion Opinion of of the Court ALITO, J. “Judicial review of all questions of law and fact, in- cluding interpretation and application of constitu- tional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including §§1225 and 1226] shall be available only in judicial review of a final order under this section.” (Emphasis added.) As in Jennings, respondents here “are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances,” we held in Jennings, see 583 U. S., at ___–___ (slip op., at 10–11), “§1252(b)(9) does not pre- sent a jurisdictional bar.” The Government raised a third concern before the Dis- trict Court in Preap: that under 8 U.S. C. §1252(f )(1), that court lacked jurisdiction to enter the requested injunction. As §1252(f )(1) cautions: “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the op- eration of [§§1221–1232] other than with respect to the application of such provisions to an individual al- ien against whom proceedings under such part have been initiated.” Did the Preap court overstep this limit by granting injunc- tive relief for a class of aliens that includes some who have not yet faced—but merely “will face”—mandatory deten- tion? The District Court said no, but we need not decide. Whether the Preap court had jurisdiction to enter such an injunction is irrelevant because the District Court had Cite as: 586 U. S. ____ (2019) 9 Opinion Opinion of of the Court ALITO, J. jurisdiction to entertain the plaintiffs’ request for declara- tory relief, and for independent reasons given below, we are ordering the dissolution of the injunction that the District Court ordered. Finally, and again before the Preap District Court, the Government raised a fourth potential snag: mootness. Class actions are “[n]ormally . . . moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez- Gomez, 584 U. S. ___, ___ (2018) (slip op., at 4). But that general norm is no hurdle here. The suggestion of mootness in these cases was based on the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings. See 831 F.3d, at 1197–1198; Khoury v. Asher, 3 F. Supp. 3d 877, 879–880 (WD Wash. 2014). But those developments did not make the cases moot because at least one named plaintiff in both cases had obtained release on bond, as opposed to cancellation of removal, and that release had been granted following a preliminary injunction in a separate case. Unless that preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. And indeed, we later ordered that that injunction be dissolved. See Jennings, 583 U. S., at ___ (slip op., at 31). Thus, in both cases, there was at least one named plaintiff with a live claim when the class was certified. Even if that had not been so, these cases would not be moot because the fact that a class “was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction” when, as in these cases, the harms alleged are transitory enough to elude review. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (affirming jurisdiction over a class action challenging a county’s failure to provide “prompt” determinations of 10 NIELSEN v. PREAP Opinion of the Court probable cause for those subjected to warrantless arrest and detention). Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims. III Having assured ourselves of our jurisdiction, we turn to the merits. Respondents contend that they are not prop- erly subject to §1226(c)’s mandatory-detention scheme, but instead are entitled to the bond hearings available to those held under the general arrest and release authority provided in §1226(a). Respondents’ primary textual ar- gument turns on the interaction of paragraphs (1) and (2) of §1226(c). Recall that those paragraphs govern, respec- tively, the “[c]ustody” and “[r]elease” of criminal aliens guilty of a predicate offense. Paragraph (1) directs the Secretary to arrest any such alien “when the alien is re- leased,” and paragraph (2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determi- nation on removal (with one exception not relevant here). Because the parties’ arguments about the meaning of §1226(c) require close attention to the statute’s terms and structure, we reproduce the provision in full below. But only the portions of the statute that we have highlighted are directly relevant to respondents’ argument. Section 1226(c) provides: “(c) Detention of criminal aliens “(1) Custody “The [Secretary] shall take into custody any alien who— “(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, “(B) is deportable by reason of having committed Cite as: 586 U. S. ____ (2019) 11 Opinion of the Court any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, “(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or “(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. “(2) Release “The [Secretary] may release an alien described in paragraph (1) only if the [Secretary] decides pursuant to section 3521 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the [Sec- retary] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision re- lating to such release shall take place in accordance with a procedure that considers the severity of the of- fense committed by the alien.” (Emphasis added.) Respondents argue that they are not subject to manda- tory detention because they are not “described in” §1226(c)(1), even though they (and all the other members of the classes they represent) fall into at least one of the 12 NIELSEN v. PREAP Opinion of the Court categories of aliens covered by subparagraphs (A)–(D) of that provision. An alien covered by these subparagraphs is not “described in” §1226(c)(1), respondents contend, unless the alien was also arrested “when [he or she was] released” from criminal custody. Indeed, respondents insist that the alien must have been arrested immediately after release. Since they and the other class members were not arrested immediately, respondents conclude, they are not “described in” §1226(c)(1). So to detain them, the Government must rely not on §1226(c) but on the general provisions of §1226(a). And thus, like others detained under §1226(a), they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others—or so they claim. But neither the statute’s text nor its structure supports this argument. In fact, both cut the other way. A First, respondents’ position runs aground on the plain text of §1226(c). Respondents are right that only an alien “described in paragraph (1)” faces mandatory detention, but they are wrong about which aliens are “described in” paragraph (1). Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is re- leased” from criminal custody. The critical parts of the provision consist of a verb (“shall take”), an adverbial clause (“when . . . released”), a noun (“alien”), and a series of adjectival clauses (“who . . . is inadmissible,” “who . . . is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “de- scrib[e]”) the noun “alien” or that the adverbial clause “when . . . released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and Cite as: 586 U. S. ____ (2019) 13 Opinion of the Court in that sense “describe[s]”) the noun “alien” are the adjec- tival clauses that appear in subparagraphs (A)–(D). Respondents and the dissent contend that this gram- matical point is not the end of the matter—that an adverb can “describe” a person even though it cannot modify the noun used to denote that person. See post, at 5–6 (opinion of BREYER, J.). But our interpretation is not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclu- sive in these cases: the particular meaning of the term “described” as it appears in §1226(c)(2). As we noted in Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 6), the term “ ‘describe’ takes on different meanings in different contexts.” A leading definition of the term is “to communicate verbally . . . an account of salient identifying features,” Webster’s Third New International Dictionary 610 (1976), and that is clearly the meaning of the term used in the phrase “an alien described in paragraph (1).” (Emphasis added.) This is clear from the fact that the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary—to list the “salient . . . fea- tures” by which she can pick out—which aliens she must arrest immediately “when [they are] released.” And here is the crucial point: The “when . . . released” clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in §1226(c)(1) would be nonsense. It would be ridiculous to read paragraph (1) as saying: “The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail.” Since it is the Secretary’s action that determines who is arrested upon release, “being ar- rested upon release” cannot be one of her criteria in figur- ing out whom to arrest. So it cannot “describe”—it cannot give the Secretary an “identifying featur[e]” of—the rele- 14 NIELSEN v. PREAP Opinion of the Court vant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent. Our reading is confirmed by Congress’s use of the defi- nite article in “when the alien is released.” Because “[w]ords are to be given the meaning that proper grammar and usage would assign them,” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012), the “rules of grammar govern” statutory interpre- tation “unless they contradict legislative intent or pur- pose,” ibid. (citing Costello v. INS, 376 U.S. 120, 122–126 (1964)). Here grammar and usage establish that “the” is “a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously speci- fied by context.” Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005). See also Work v. United States ex rel. McAlester-Edwards Co., 262 U.S. 200, 208 (1923) (Congress’s “use of the definite article [in a reference to “the appraisement”] means an appraisement specifically provided for”). For “the alien”—in the clause “when the alien is released”—to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the tail end of paragraph (1). For these reasons, we hold that the scope of “the alien” is fixed by the predicate offenses identified in subpara- graphs (A)–(D).5 And since only those subparagraphs settle who is “described in paragraph (1),” anyone who fits their description falls under paragraph (2)’s detention mandate—even if (as with respondents) the Secretary did not arrest them immediately “when” they were “released.” —————— 5 For this reason, it is irrelevant that (as the dissent notes, see post, at 8) paragraph (2) applies to aliens described in “paragraph (1)” and not “subparagraphs (A)–(D).” These two phrases denote the same category, so nothing can be gleaned from Congress’s choice of one over the other. Cite as: 586 U. S. ____ (2019) 15 Opinion of the Court B In reaching the contrary conclusion, the Ninth Circuit thought that the very structure of §1226 favors respond- ents’ reading. In particular, the Ninth Circuit reasoned, each subsection’s arrest and release provisions must work together. Thus, aliens must be arrested under the general arrest authority in subsection (a) in order to get a bond hearing under subsection (a)’s release provision. And in order to face mandatory detention under subsection (c), criminal aliens must have been arrested under subsection (c). But since subsection (c) authorizes only immediate arrest, the argument continues, those arrested later fall under subsection (a), not (c). Accordingly, the court con- cluded, those arrested well after release escape subsection (c)’s detention mandate. See 831 F.3d, at 1201–1203. But this argument misreads the structure of §1226; and in any event, the Ninth Circuit’s conclusion would not follow even if we granted all its premises about statutory structure. 1 Although the Ninth Circuit viewed subsections (a) and (c) as establishing separate sources of arrest and release authority, in fact subsection (c) is simply a limit on the authority conferred by subsection (a). Recall that subsection (a) has two sentences that pro- vide the Secretary with general discretion over the arrest and release of aliens, respectively. We read each of sub- section (c)’s two provisions—paragraph (1) on arrest, and paragraph (2) on release—as modifying its counterpart sentence in subsection (a). In particular, subsection (a) creates authority for anyone’s arrest or release under §1226—and it gives the Secretary broad discretion as to both actions—while subsection (c)’s job is to subtract some of that discretion when it comes to the arrest and release of criminal aliens. Thus, subsection (c)(1) limits subsec- tion (a)’s first sentence by curbing the discretion to arrest: 16 NIELSEN v. PREAP Opinion of the Court The Secretary must arrest those aliens guilty of a predi- cate offense. And subsection (c)(2) limits subsection (a)’s second sentence by cutting back the Secretary’s discretion over the decision to release: The Secretary may not release aliens “described in” subsection (c)(1)—that is, those guilty of a predicate offense. Accordingly, all the relevant de- tainees will have been arrested by authority that springs from subsection (a), and so, contrary to the Court of Ap- peals’ view, that fact alone will not spare them from sub- section (c)(2)’s prohibition on release. This reading com- ports with the Government’s practice of applying to the arrests of all criminal aliens certain procedural require- ments, such as the need for a warrant, that appear only in subsection (a). See Tr. of Oral Arg. 13–14. The text of §1226 itself contemplates that aliens ar- rested under subsection (a) may face mandatory detention under subsection (c). The second sentence in subsection (a)—which generally authorizes the Secretary to release an alien pending removal proceedings—features an excep- tion “as provided in subsection (c).” But if the Court of Appeals were right that subsection (c)(2)’s prohibition on release applies only to those arrested pursuant to subsec- tion (c)(1), there would have been no need to specify that such aliens are exempt from subsection (a)’s release provi- sion. This shows that it is possible for those arrested under subsection (a) to face mandatory detention under subsection (c). We draw a similar inference from the fact that subsection (c)(2), for its part, does not limit manda- tory detention to those arrested “pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1)— but to anyone so much as “described in” subsection (c)(1). This choice of words marks a contrast with Congress’s reference—in the immediately preceding subsection—to actions by the Secretary that are “authorized under” sub- section (a). See §1226(b). Cf. 18 U.S. C. §3262(b) (refer- ring to “a person arrested under subsection (a)” (emphasis Cite as: 586 U. S. ____ (2019) 17 Opinion Opinion of of the Court ALITO, J. added)). These textual cues indicate that even if an alien was not arrested under authority bestowed by sub- section (c)(1), he may face mandatory detention under subsection (c)(2). 2 But even if the Court of Appeals were right to reject this reading, the result below would be wrong. To see why, assume with the Court of Appeals that only someone arrested under authority created by §1226(c)(1)—rather than the more general §1226(a)—may be detained without a bond hearing. And assume that subsection (c)(1) re- quires immediate arrest. Even then, the Secretary’s fail- ure to abide by this time limit would not cut off her power to arrest under subsection (c)(1). That is so because, as we have held time and again, an official’s crucial duties are better carried out late than never. See Sylvain v. Attorney General of U. S., 714 F.3d 150, 158 (CA3 2013) (collecting cases). Or more precisely, a statutory rule that officials “ ‘shall’ act within a specified time” does not by itself “pre- clud[e] action later.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003). Especially relevant here is our decision in United States v. Montalvo-Murillo, 495 U.S. 711 (1990). There we held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not bar detention after a tardy hearing.” Barnhart, 537 U.S., at 159 (quoting Montalvo- Murillo, 495 U.S., at 714). In that case, we refused to “bestow upon the defendant a windfall” and “visit upon the Government and the citizens a severe penalty by mandat- ing release of possibly dangerous defendants every time some deviation from the [statutory] strictures . . . oc- cur[red].” Montalvo-Murillo, 495 U.S., at 720. Instead, we gave effect to the principle that “ ‘if a statute does not specify a consequence for noncompliance with statutory 18 NIELSEN v. PREAP Opinion Opinion of of the Court ALITO, J. timing provisions, the federal courts will not in the ordi- nary course impose their own coercive sanction.’ ” Barn- hart, 537 U.S., at 159 (quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993)). This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Con- gress enacted §1226(c). Cf. Woodford v. Garceau, 538 U.S. 202, 209 (2003) (relying on the “legal backdrop” against which “Congress legislated” to clarify what Con- gress enacted). Indeed, we have held of a statute enacted just four years before §1226(c) that because of our case law at the time—never since abrogated—Congress was “pre- sumably aware that we do not readily infer congressional intent to limit an agency’s power to get a mandatory job done merely from a specification to act by a certain time.” Barnhart, 537 U.S., at 160 (relying on Brock v. Pierce County, 476 U.S. 253 (1986)). Here this principle entails that even if subsection (c)(1) were the sole source of au- thority to arrest aliens without granting them hearings, that authority would not evaporate just because officials had transgressed subsection (c)(1)’s command to arrest aliens immediately “when . . . released.” Respondents object that the rule invoked in Montalvo- Murillo and related cases does not apply here. In those cases, respondents argue, the governmental authority at issue would have disappeared entirely if time limits were enforced—whereas here the Secretary could still arrest aliens well after their release under the general language in §1226(a). But the whole premise of respondents’ argument is that if the Secretary could no longer act under §1226(c), she would lose a specific power—the power to arrest and detain criminal aliens without a bond hearing. If that is so, then as in other cases, accepting respondents’ deadline- based argument would be inconsistent with “the design and function of the statute.” Montalvo-Murillo, 495 U. S., Cite as: 586 U. S. ____ (2019) 19 Opinion Opinion of of the Court ALITO, J. at 719. From Congress’s perspective, after all, it is irrele- vant that the Secretary could go on detaining criminal aliens subject to a bond hearing. Congress enacted man- datory detention precisely out of concern that such indi- vidualized hearings could not be trusted to reveal which “deportable criminal aliens who are not detained” might “continue to engage in crime [or] fail to appear for their removal hearings.” Demore, 538 U.S., at 513. And having thus required the Secretary to impose mandatory deten- tion without bond hearings immediately, for safety’s sake, Congress could not have meant for judges to “enforce” this duty in case of delay by—of all things—forbidding its execution. Cf. Montalvo-Murillo, 495 U.S., at 720 (“The end of exacting compliance with the letter” of the Bail Reform Act’s requirement that a defendant receive a hearing immediately upon his first appearance before a judicial officer “cannot justify the means of exposing the public to an increased likelihood of violent crimes by per- sons on bail, an evil the statute aims to prevent”). Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under §1226(c), the alien must be arrested on the day he walks out of jail (though respondents allow that it need not be at the jailhouse door—the “parking lot” or “bus stop” would do). Tr. of Oral Arg. 44. “Assessing the situa- tion in realistic and practical terms, it is inevitable that” respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control. Montalvo-Murillo, 495 U.S., at 720. Cf. Regions Hospital v. Shalala, 522 U.S. 448, 459, n. 3 (1998) (“The Secre- tary’s failure to meet the deadline, a not uncommon occur- rence when heavy loads are thrust on administrators, does not mean that [she] lacked power to act beyond it”). To give just one example, state and local officials sometimes rebuff the Government’s request that they give notice when a criminal alien will be released. Indeed, over a 20 NIELSEN v. PREAP Opinion of the Court span of less than three years (from January 2014 to Sep- tember 2016), the Government recorded “a total of 21,205 declined [requests] in 567 counties in 48 states including the District of Columbia.” ICE, Fiscal Year 2016 ICE Enf. and Removal Operations Rep. 9. Nor was such local re- sistance unheard of when Congress enacted the language of §1226(c) in 1996. See S. Rep. No. 104–48, p. 28 (1995). Under these circumstances, it is hard to believe that Con- gress made the Secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release. In short, the import of our case law is clear: Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its “when . . . released” clause to defeat officials’ duty to impose such mandatory detention when it comes to aliens who are arrested well after their release. IV Respondents protest that reading §1226(c) in the man- ner set forth here would render key language superfluous, lead to anomalies, and violate the canon of constitutional avoidance. We answer these objections in turn. A According to respondents, the Government’s reading of §1226(c) flouts the interpretive canon against surplus- age—the idea that “every word and every provision is to be given effect [and that n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Scalia, Reading Law, at 174. See Kungys v. United States, 485 U.S. 759, 778 (1988) (plurality opinion of Scalia, J.) (citing the “cardinal rule of statutory interpretation that no provision should be con- strued to be entirely redundant”). Respondents’ surplus- age argument has two focal points. First, respondents claim that if they face mandatory Cite as: 586 U. S. ____ (2019) 21 Opinion of the Court detention even though they were arrested well after their release, then “when . . . released” adds nothing to para- graph (1). In fact, however, it still has work to do. For one thing, it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such re- lease or after the completion of noncustodial portions of a criminal sentence (such as a term of “parole, supervised release, or probation,” as the paragraph goes on to empha- size). Thus, paragraph (1) does not permit the Secretary to cut short an alien’s state prison sentence in order to usher him more easily right into immigration detention— much as another provision prevents officials from actually removing an alien from the country “until the alien is released from imprisonment.” 8 U.S. C. §1231(a)(4)(A). And from the other end, as paragraph (1)’s language makes clear, the Secretary need not wait for the sentenc- ing court’s supervision over the alien to expire. The “when . . . released” clause also serves another purpose: exhorting the Secretary to act quickly. And this point answers respondents’ second surplusage claim: that the “Transition Period Custody Rules” enacted along with §1226(c) would have been superfluous if §1226(c) did not call for immediate arrests, since those rules authorized delays in §1226(c)’s implementation while the Government expanded its capacities. See Matter of Garvin-Noble, 21 I. & N. Dec. 672, 675 (BIA 1997). This argument again confuses what the Secretary is obligated to do with the consequences that follow if the Secretary fails (for what- ever reason) to fulfill that obligation. The transition rules delayed the onset of the Secretary’s obligation to begin making arrests as soon as covered aliens were released from criminal custody, and in that sense they were not superfluous.6 This is so even though, had the transition —————— 6 The dissent asks why Congress would have felt the need to provide for a delay if it thought that either way, the Secretary would get to 22 NIELSEN v. PREAP Opinion of the Court rules not been adopted, the Secretary’s failure to make an arrest immediately upon a covered alien’s release would not have exempted the alien from mandatory detention under §1226(c). B The Court of Appeals objected that the Government’s reading of §1226(c) would have the bizarre result that some aliens whom the Secretary need not arrest at all must nonetheless be detained without a hearing if they are arrested. 831 F.3d, at 1201–1203. This rather com- plicated argument, as we understand it, proceeds as fol- lows. Paragraph (2) requires the detention of aliens “de- scribed in paragraph (1).” While most of the aliens described there have been convicted of a criminal offense, this need not be true of aliens captured by subparagraph (D) in particular—which covers, for example, aliens who are close relatives of terrorists and those who are believed likely to commit a terrorist act. See §1182(a)(3)(B)(i)(IX). But if, as the Government maintains, any alien who falls under subparagraphs (A)–(D) is thereby ineligible for release from immigration custody, then the Secretary would be forbidden to release even these aliens who were —————— deny a hearing to aliens arrested well after release. Post, at 10; see also post, at 13–14. The answer is that Congress does not draft legisla- tion in the expectation that the Executive will blow through the dead- lines it sets. That is why Congress specifies any deadlines for executive duties at all; and here it explains why Congress furthermore provided that the deadline it set for this particular duty (to arrest criminal aliens upon their release) would not take effect right away. In fact, if the dissent’s argument from the transition rules were sound—i.e., if textual evidence that Congress expects the Executive to meet a deadline (once it officially takes effect) were proof that Congress wanted the deadline enforced by courts—then every case involving an express statutory deadline would be one in which Congress intended for courts to enforce the deadline. But this would include, by definition, all of the loss-of-authority cases we discussed above, see Part III–B–2, supra—a long line of precedent that the dissent does not question. Cite as: 586 U. S. ____ (2019) 23 Opinion of the Court never convicted or perhaps even charged with a crime, once she arrested them. Yet she would be free not to arrest them to begin with (or so the Court of Appeals assumed), since she is obligated to arrest aliens “when . . . released,” and there was no prior custody for these aliens to be “released” from. Therefore, the court concluded, the Government’s position has the absurd implication that aliens who were never charged with a crime need not be arrested pending a removal determination, but if they are arrested, they must be detained and cannot be released on bond or parole. We agree that it would be very strange for Congress to forbid the release of aliens who need not be arrested in the first place, but the fact is that the Government’s reading (and ours) does not have that incongruous result. The real anomalies here would flow instead from the Court of Appeals’ interpretation. To begin with the latter point: Under the Court of Ap- peals’ reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders. To see why, recall first that subparagraphs (A)–(C) cover aliens who are inadmissible or deportable based on the commission of certain criminal offenses, and there is no dispute that the statute authorizes their mandatory de- tention when they are released from criminal custody. And the crimes covered by these subparagraphs include, for example, any drug offense by an adult punishable by more than one year of imprisonment, see §§1182(a)(2), 1226(c)(1)(A), as well as a variety of tax offenses, see §§1226(c)(1)(B), 1227(a)(2)(A)(iii); Kawashima v. Holder, 565 U.S. 478 (2012). But notice that aliens who fall within subparagraph (D), by contrast, may never have been arrested on criminal charges—which according to the court below would exempt them from mandatory deten- tion. Yet this subparagraph covers the very sort of aliens for which Congress was most likely to have wanted to 24 NIELSEN v. PREAP Opinion of the Court require mandatory detention—including those who are representatives of a terrorist group and those whom the Government has reasonable grounds to believe are likely to engage in terrorist activities. See §§1182(a)(3)(B)(i)(III), (IV), 1226(c)(1)(D).7 Thus, by the Court of Appeals’ logic, Congress chose to spare terrorist aliens from the rigors of mandatory detention—a mercy withheld from almost all drug offenders and tax cheats. See Brief for National Immigrant Justice Center as Amicus Curiae 7–8. That result would be incongruous. Along similar lines, note that one §1226(c)(1) predicate reaches aliens who necessarily escape conviction: those “for whom immunity from criminal jurisdiction was exer- cised.” §1182(a)(2)(E)(ii). See §1226(c)(1)(A). And other predicates sweep in aliens whom there is no reason to expect police (as opposed to immigration officials) will have reason to arrest: e.g., the “spouse or child of an alien” who recently engaged in terrorist activity. §1182(a)(3)(B)(i)(IX); see §1226(c)(1)(D). It would be point- less for Congress to have covered such aliens in subsec- tions (c)(1)(A)–(D) if subsection (c)’s mandates applied only to those emerging from jail. Thus, contrary to the Court of Appeals’ interpretation of the “when released” clause as limiting the class of aliens subject to mandatory detention, we read subsection (c)(1) to specify the timing of arrest (“when the alien is re- leased”) only for the vast majority of cases: those involving criminal aliens who were once in criminal custody. The paragraph simply does not speak to the timeline for ar- resting the few who had no stint in jail. (And why should —————— 7 In Alafyouny, 2006 WL 1581959, for example, an alien subject to mandatory detention had not been charged with any crime. Rather, in a hearing to consider his application for adjustment of status, an immigration judge found that the alien had engaged in terrorism- related activity identified in §1182(a)(3)(B)(iv)(IV)(cc), which qualified him for mandatory detention under §1226(c)(1)(D). Id., at *3, *24. Cite as: 586 U. S. ____ (2019) 25 Opinion of the Court it? Presumably they—unlike those serving time—are to be detained as they come across the Government’s radar and any relevant evidentiary standards are satisfied.8) In short, we read the “when released” directive to apply when there is a release. In other situations, it is simply not relevant. It follows that both of subsection (c)’s man- dates—for arrest and for release—apply to any alien linked with a predicate offense identified in subpara- graphs (A)–(D), regardless of exactly when or even whether the alien was released from criminal custody. C Finally, respondents perch their reading of §1226(c)— unsteadily, as it turns out—on the canon of constitutional avoidance. This canon provides that “[w]hen ‘a serious doubt’ is raised about the constitutionality of an act of Congress, ‘. . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” Jennings, 583 U. S., at ___ (slip op., at 12) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). Respondents say we should be uneasy about endorsing any reading of §1226(c) that would mandate arrest and detention years after aliens’ release from criminal cus- tody—when many aliens will have developed strong ties to the country and a good chance of being allowed to stay if given a hearing. At that point, respondents argue, man- datory detention may be insufficiently linked to public benefits like protecting others against crime and ensuring that aliens will appear at their removal proceedings. In respondents’ view, detention in that scenario would raise —————— 8 See n. 7, supra. Detainees who deny that they satisfy any §1226(c) predicate may challenge their mandatory detention in a Joseph hear- ing. See Matter of Joseph, 22 I. & N. Dec. 799 (BIA 1999). See also Jennings v. Rodriguez, 583 U. S. ___, ___, n. 1 (2018) (slip op., at 5, n. 1). 26 NIELSEN v. PREAP Opinion of the Court constitutional doubts under Zadvydas v. Davis, 533 U.S. 678 (2001), which held that detention violates due process absent “adequate procedural protections” or “special justi- fication[s]” sufficient to outweigh one’s “ ‘constitutionally protected interest in avoiding physical restraint,’ ” id., at 690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). Thus, respondents urge, we should adopt a read- ing of §1226(c)—their reading—that avoids this result. The trouble with this argument is that constitutional avoidance “ ‘comes into play only when, after the applica- tion of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’ ” Jennings, 583 U. S., at ___ (slip op., at 12). The canon “has no applica- tion” absent “ambiguity.” Warger v. Shauers, 574 U.S. 40, 50 (2014) (internal quotation marks omitted). See also Zadvydas, 533 U.S., at 696 (“Despite this constitutional problem, if Congress has made its intent in the statute clear, we must give effect to that intent” (internal quota- tion marks omitted)). Here the text of §1226 cuts clearly against respondents’ position, see Part III, supra, making constitutional avoidance irrelevant. We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of §1226(c)—an idle pillar here because the statute is clear. While respondents might have raised a head-on constitutional challenge to §1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges—that is, constitutional challenges to applica- tions of the statute as we have now read it. * * * The judgments of the Court of Appeals for the Ninth Circuit are reversed, and the cases are remanded for further proceedings. It is so ordered. Cite as: 586 U. S. ____ (2019) 1 KAVANAUGH, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–1363 _________________ KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERS v. MONY PREAP, ET AL. BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS v. BASSAM YUSUF KHOURY, ET AL.

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being de- cided. These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not en- danger others and would not flee if released from custody. Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dan- gerous crimes and those who have connections to terror- ism. Under a statutory provision enacted in 1996, 110 2 NIELSEN v. PREAP Opinion of the Court Stat. 3009–585, 8 U.S. C. these aliens must be arrested “when [they are] released” from custody on crim- inal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved. In these cases, the United States Court of Appeals for the Ninth Circuit held that this mandatory-detention requirement applies only if a covered alien is arrested by immigration officials as soon as he is released from jail. If the alien evades arrest for some short period of time— according to respondents, even 24 hours is too long—the mandatory-detention requirement is inapplicable, and the alien must have an opportunity to apply for release on bond or parole. Four other Circuits have rejected this interpretation of the statute, and we agree that the Ninth Circuit’s interpretation is wrong. We therefore reverse the judgments below and remand for further proceedings. I A Under federal immigration law, aliens present in this country may be removed if they fall “within one or more classes of deportable aliens.” 8 U.S. C. In these cases, we focus on two provisions governing the arrest, detention, and release of aliens who are believed to be subject to removal. The first provision, applies to most such —————— 1 This provision states: “(a) Arrest, detention, and release “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) and pending such decision, the Attorney General— “(1) may continue to detain the arrested alien; and “(2) may release the alien on— “(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or Cite as: 586 U. S. (2019) 3 Opinion of the Court aliens, and it sets out the general rule regarding their arrest and detention pending a decision on removal. Section 1226(a) contains two sentences, one dealing with taking an alien into custody and one dealing with deten- tion. The first sentence empowers the Secretary of Home- land Security2 to arrest and hold an alien “pending a decision on whether the alien is to be removed from the United States.” The second sentence generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. If the alien is detained, he may seek review of his detention by an officer at the Department of Homeland Security and then by an immi- gration judge (both exercising power delegated by the Secretary), see (c)(8) and (d)(1), 1003.19, 1236.1(d)(1) (2018); and the alien may secure his release if he can convince the officer or immigration judge that he poses no flight risk and no danger to the community. See 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 3 (BIA 2006). But while 8 U.S. C. generally permits an alien to seek release in this way, that provi- sion’s sentence on release states that all this is subject to an exception that is set out in Section 1226(c) was enacted as part of the Illegal Immi- gration Reform and Immigrant Responsibility Act of 1996, and it sprang from a “concer[n] that deportable criminal —————— “(B) conditional parole; but “(3) may not provide the alien with work authorization (including an ‘employment authorized’ endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization.” 2 We replace “Attorney General” with “Secretary” because Congress has empowered the Secretary to enforce the Immigration and National- ity Act, 8 U.S. C. et seq., though the Attorney General retains the authority to administer removal proceedings and decide relevant questions of law. See, e.g., 6 U.S. C. 251, 21(b), 542 note, 55; 8 U.S. C. and (g), 1551 note. 4 NIELSEN v. PREAP Opinion of the Court aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers.” To address this problem, Congress mandated that aliens who were thought to pose a heightened risk be arrested and detained without a chance to apply for release on bond or parole. Section 1226(c) consists of two paragraphs, one on the decision to take an alien into “[c]ustody” and another on the alien’s subsequent “[r]elease.”3 The first paragraph (on custody) sets out four categories of covered aliens, namely, those who are inadmissible or deportable on specified grounds. It then provides that the Secretary must take any alien falling into one of these categories “into custody” “when the alien is released” from criminal custody. The second paragraph (on release from immigration custody) states that “an alien described in paragraph (1)” may be released “only if [the Secretary] decides” that release is “necessary to provide protection” for witnesses or others cooperating with a criminal investigation, or their relatives or associates. That exception is not impli- cated in the present cases. The categories of predicates for mandatory detention identified in subparagraphs (A)–(D) generally involve the commission of crimes. As will become relevant to our analysis, however, some who satisfy subparagraph (D)— e.g., close relatives of terrorists and those who are thought likely to engage in terrorist activity, see 8 U.S. C. never have been charged with any crime in this country.4 Still, since the vast majority of —————— 3 The full text of is set out infra, at 10–11. 4 Nevertheless,such cases appear to be rare. See ). But see (ND Tex., May 19, Cite as: 586 U. S. (2019) 5 Opinion of the Court mandatory-detention cases do involve convictions, we follow the heading of subsection (c), as well as our cases and the courts below, in referring to aliens who satisfy subparagraphs (A)–(D) collectively as “criminal aliens.” The Board of Immigration Appeals has held that subsec- tion (c)(2), which requires the detention of aliens “de- scribed in” subsection (c)(1), applies to all aliens who fall within subparagraphs (A)–(D), whether or not they were arrested immediately “when [they were] released” from criminal custody. Matter of Rojas, (BIA 2001) (en banc). B Respondents in the two cases before us are aliens who were detained under (2)’s mandatory-detention requirement—and thus denied a bond hearing—pending a decision on their removal. See Preap v. Johnson, 831 F.3d 1193 (CA9 2016); (CA9 2016). Though all respondents had been convicted of criminal offenses covered in §(1)(A)–(D), none were arrested by immigration officials immediately after their release from criminal custody. Indeed, some were not arrested until several years later. Respondent Mony Preap, the lead plaintiff in the case that bears his name, is a lawful permanent resident with two drug convictions that qualify him for mandatory detention under Though he was released from criminal custody in 2006, immigration officials did not detain him until when he was released from jail after an arrest for another offense. His co-plaintiffs Juan Lozano Magdaleno and Eduardo Vega Padilla were taken into immigration detention, respectively, 5 and 11 years after their release from custody for a predicate —————— 2006) (an alien was subject to mandatory detention based on a deter- mination that the alien had solicited funds for a terrorist group). 6 NIELSEN v. PREAP Opinion of the Court offense. Preap, Magdaleno, and Padilla filed habeas peti- tions and a class-action complaint alleging that because they were not arrested “immediately” after release from criminal custody, they are exempt from mandatory deten- tion under and are entitled to a bond hearing to determine if they should be released pending a decision on their status. Although the named plaintiffs in Preap were not taken into custody on immigration grounds until years after their release from criminal custody, the District Court certified a broad class comprising all aliens in California “ ‘who are or will be subjected to mandatory detention under 8 U.S. C. section 1226(c) and who were not or will not have been taken into custody by the government im- mediately upon their release from criminal custody for a [s]ection 1226(c)(1) offense.’ ” (emphasis added). The District Court granted a preliminary injunc- tion against the mandatory detention of the members of this class, holding that criminal aliens are exempt from mandatory detention under (and are thus entitled to a bond hearing) unless they are arrested “ ‘when [they are] released,’ and no later.” Preap v. Johnson, 303 F. R. D. 566, 5 (quoting 8 U.S. C. (1)). The Court of Appeals for the Ninth Circuit affirmed. Khoury, the other case now before us, involves habeas petitions and a class-action complaint filed in the Western District of Washington. The District Court certified a class comprising all aliens in that district “who were sub- jected to mandatory detention under 8 U.S. C. even though they were not detained immediately upon their release from criminal custody.” 66 Fed. Appx., at 96. The District Court granted summary judgment for respondents, and the Ninth Circuit again affirmed, citing its decision on the same day in Preap. Because Preap and Khoury created a split with four Cite as: 586 U. S. (2019) Opinion Opinion of of the Court ALITO, J. other Courts of Appeals, we granted certiorari to review the Ninth Circuit’s ruling that criminal aliens who are not arrested immediately upon release are thereby exempt from mandatory detention under 583 U. S. (2018). We now reverse. II Before addressing the merits of the Court of Appeals’ interpretation, we resolve four questions regarding our jurisdiction to hear these cases. The first potential hurdle concerns which states: “The [Secretary’s] discretionary judgment regarding the application of shall not be subject to re- view. No court may set aside any action or decision by the [Secretary] under this section regarding the de- tention or release of any alien or the grant, revocation, or denial of bond or parole.” (Emphasis added.) As we have held, this limitation applies only to “discre- tionary” decisions about the “application” of to particular cases. It does not block lawsuits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. – (2018) (slip op., at 11–12) (quoting ). And the general extent of the Government’s authority under is precisely the issue here. Respondents’ argument is not that the Gov- ernment exercised its statutory authority in an unreason- able fashion. Instead, they dispute the extent of the statu- tory authority that the Government claims. Because this claim of authority does not constitute a mere “discretion- ary” “application” of the relevant statute, our review is not barred by (e). Nor are we stripped of jurisdiction by which provides: 8 NIELSEN v. PREAP Opinion Opinion of of the Court ALITO, J. “Judicial review of all questions of law and fact, in- cluding interpretation and application of constitu- tional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter [including and 1226] shall be available only in judicial review of a final order under this section.” (Emphasis added.) As in Jennings, respondents here “are not asking for review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal [as opposed to the decision to deny them bond hearings]; and they are not even challenging any part of the process by which their removability will be determined. Under these circumstances,” we held in Jennings, see 583 U. S., at – (slip op., at 10–11), does not pre- sent a jurisdictional bar.” The Government raised a third concern before the Dis- trict Court in Preap: that under 8 U.S. C. )(1), that court lacked jurisdiction to enter the requested injunction. As )(1) cautions: “Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the op- eration of other than with respect to the application of such provisions to an individual al- ien against whom proceedings under such part have been initiated.” Did the Preap court overstep this limit by granting injunc- tive relief for a class of aliens that includes some who have not yet faced—but merely “will face”—mandatory deten- tion? The District Court said no, but we need not decide. Whether the Preap court had jurisdiction to enter such an injunction is irrelevant because the District Court had Cite as: 586 U. S. (2019) 9 Opinion Opinion of of the Court ALITO, J. jurisdiction to entertain the plaintiffs’ request for declara- tory relief, and for independent reasons given below, we are ordering the dissolution of the injunction that the District Court ordered. Finally, and again before the Preap District Court, the Government raised a fourth potential snag: mootness. Class actions are “[n]ormally moot if no named class representative with an unexpired claim remain[s] at the time of class certification.” United States v. Sanchez- Gomez, 584 U. S. (2018) (slip op., at 4). But that general norm is no hurdle here. The suggestion of mootness in these cases was based on the fact that by the time of class certification the named plaintiffs had obtained either cancellation of removal or bond hearings. See –1198; Khoury v. Asher, But those developments did not make the cases moot because at least one named plaintiff in both cases had obtained release on bond, as opposed to cancellation of removal, and that release had been granted following a preliminary injunction in a separate case. Unless that preliminary injunction was made permanent and was not disturbed on appeal, these individuals faced the threat of re-arrest and mandatory detention. And indeed, we later ordered that that injunction be dissolved. See Jennings, 583 U. S., at (slip op., at 31). Thus, in both cases, there was at least one named plaintiff with a live claim when the class was certified. Even if that had not been so, these cases would not be moot because the fact that a class “was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction” when, as in these cases, the harms alleged are transitory enough to elude review. County of (affirming jurisdiction over a class action challenging a county’s failure to provide “prompt” determinations of 10 NIELSEN v. PREAP Opinion of the Court probable cause for those subjected to warrantless arrest and detention). Respondents claim that they would be harmed by detention without a hearing pending a decision on their removal. Because this type of injury ends as soon as the decision on removal is made, it is transitory. So the fact that the named plaintiffs obtained some relief before class certification does not moot their claims. Having assured ourselves of our jurisdiction, we turn to the merits. Respondents contend that they are not prop- erly subject to ’s mandatory-detention scheme, but instead are entitled to the bond hearings available to those held under the general arrest and release authority provided in Respondents’ primary textual ar- gument turns on the interaction of paragraphs (1) and (2) of Recall that those paragraphs govern, respec- tively, the “[c]ustody” and “[r]elease” of criminal aliens guilty of a predicate offense. Paragraph (1) directs the Secretary to arrest any such alien “when the alien is re- leased,” and paragraph (2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determi- nation on removal (with one exception not relevant here). Because the parties’ arguments about the meaning of require close attention to the statute’s terms and structure, we reproduce the provision in full below. But only the portions of the statute that we have highlighted are directly relevant to respondents’ argument. Section 1226(c) provides: “(c) Detention of criminal aliens “(1) Custody “The [Secretary] shall take into custody any alien who— “(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, “(B) is deportable by reason of having committed Cite as: 586 U. S. (2019) 11 Opinion of the Court any offense covered in section 122(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, “(C) is deportable under section 122(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence[d] to a term of imprisonment of at least 1 year, or “(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 122(a)(4)(B) of this title, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. “(2) Release “The [Secretary] may release an alien described in paragraph (1) only if the [Secretary] decides pursuant to section 31 of title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the [Sec- retary] that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision re- lating to such release shall take place in accordance with a procedure that considers the severity of the of- fense committed by the alien.” (Emphasis added.) Respondents argue that they are not subject to manda- tory detention because they are not “described in” (1), even though they (and all the other members of the classes they represent) fall into at least one of the 12 NIELSEN v. PREAP Opinion of the Court categories of aliens covered by subparagraphs (A)–(D) of that provision. An alien covered by these subparagraphs is not “described in” (1), respondents contend, unless the alien was also arrested “when [he or she was] released” from criminal custody. Indeed, respondents insist that the alien must have been arrested immediately after release. Since they and the other class members were not arrested immediately, respondents conclude, they are not “described in” (1). So to detain them, the Government must rely not on but on the general provisions of And thus, like others detained under they are owed bond hearings in which they can earn their release by proving that they pose no flight risk and no danger to others—or so they claim. But neither the statute’s text nor its structure supports this argument. In fact, both cut the other way. A First, respondents’ position runs aground on the plain text of Respondents are right that only an alien “described in paragraph (1)” faces mandatory detention, but they are wrong about which aliens are “described in” paragraph (1). Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is re- leased” from criminal custody. The critical parts of the provision consist of a verb (“shall take”), an adverbial clause (“when released”), a noun (“alien”), and a series of adjectival clauses (“who is inadmissible,” “who is deportable,” etc.). As an initial matter, no one can deny that the adjectival clauses modify (and in that sense “de- scrib[e]”) the noun “alien” or that the adverbial clause “when released” modifies the verb “shall take.” And since an adverb cannot modify a noun, the “when released” clause cannot modify “alien.” Again, what modifies (and Cite as: 586 U. S. (2019) 13 Opinion of the Court in that sense “describe[s]”) the noun “alien” are the adjec- tival clauses that appear in subparagraphs (A)–(D). Respondents and the dissent contend that this gram- matical point is not the end of the matter—that an adverb can “describe” a person even though it cannot modify the noun used to denote that person. See post, at 5–6 (opinion of BREYER, J.). But our interpretation is not dependent on a rule of grammar. The preliminary point about grammar merely complements what is critical, and indeed conclu- sive in these cases: the particular meaning of the term “described” as it appears in (2). As we noted in Luna Torres v. Lynch, 58 U. S. (2016) (slip op., at 6), the term “ ‘describe’ takes on different meanings in different contexts.” A leading definition of the term is “to communicate verbally an account of salient identifying features,” Webster’s Third New International Dictionary 610 (196), and that is clearly the meaning of the term used in the phrase “an alien described in paragraph (1).” (Emphasis added.) This is clear from the fact that the indisputable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary—to list the “salient fea- tures” by which she can pick out—which aliens she must arrest immediately “when [they are] released.” And here is the crucial point: The “when released” clause could not possibly describe aliens in that sense; it plays no role in identifying for the Secretary which aliens she must immediately arrest. If it did, the directive in (1) would be nonsense. It would be ridiculous to read paragraph (1) as saying: “The Secretary must arrest, upon their release from jail, a particular subset of criminal aliens. Which ones? Only those who are arrested upon their release from jail.” Since it is the Secretary’s action that determines who is arrested upon release, “being ar- rested upon release” cannot be one of her criteria in figur- ing out whom to arrest. So it cannot “describe”—it cannot give the Secretary an “identifying featur[e]” of—the rele- 14 NIELSEN v. PREAP Opinion of the Court vant class of aliens. On any other reading of paragraph (1), the command that paragraph (1) gives the Secretary would be downright incoherent. Our reading is confirmed by Congress’s use of the defi- nite article in “when the alien is released.” Because “[w]ords are to be given the meaning that proper grammar and usage would assign them,” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 140 the “rules of grammar govern” statutory interpre- tation “unless they contradict legislative intent or pur- pose,” (citing 122–126 (1964)). Here grammar and usage establish that “the” is “a function word indicat[ing] that a following noun or noun equivalent is definite or has been previously speci- fied by context.” Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005). See also (Congress’s “use of the definite article [in a reference to “the appraisement”] means an appraisement specifically provided for”). For “the alien”—in the clause “when the alien is released”—to have been previously specified, its scope must have been settled by the time the “when released” clause appears at the tail end of paragraph (1). For these reasons, we hold that the scope of “the alien” is fixed by the predicate offenses identified in subpara- graphs (A)–(D).5 And since only those subparagraphs settle who is “described in paragraph (1),” anyone who fits their description falls under paragraph (2)’s detention mandate—even if (as with respondents) the Secretary did not arrest them immediately “when” they were “released.” —————— 5 For this reason, it is irrelevant that (as the dissent notes, see post, at 8) paragraph (2) applies to aliens described in “paragraph (1)” and not “subparagraphs (A)–(D).” These two phrases denote the same category, so nothing can be gleaned from Congress’s choice of one over the other. Cite as: 586 U. S. (2019) 15 Opinion of the Court B In reaching the contrary conclusion, the Ninth Circuit thought that the very structure of favors respond- ents’ reading. In particular, the Ninth Circuit reasoned, each subsection’s arrest and release provisions must work together. Thus, aliens must be arrested under the general arrest authority in subsection (a) in order to get a bond hearing under subsection (a)’s release provision. And in order to face mandatory detention under subsection (c), criminal aliens must have been arrested under subsection (c). But since subsection (c) authorizes only immediate arrest, the argument continues, those arrested later fall under subsection (a), not (c). Accordingly, the court con- cluded, those arrested well after release escape subsection (c)’s detention mandate. See –1203. But this argument misreads the structure of ; and in any event, the Ninth Circuit’s conclusion would not follow even if we granted all its premises about statutory structure. 1 Although the Ninth Circuit viewed subsections (a) and (c) as establishing separate sources of arrest and release authority, in fact subsection (c) is simply a limit on the authority conferred by subsection (a). Recall that subsection (a) has two sentences that pro- vide the Secretary with general discretion over the arrest and release of aliens, respectively. We read each of sub- section (c)’s two provisions—paragraph (1) on arrest, and paragraph (2) on release—as modifying its counterpart sentence in subsection (a). In particular, subsection (a) creates authority for anyone’s arrest or release under —and it gives the Secretary broad discretion as to both actions—while subsection (c)’s job is to subtract some of that discretion when it comes to the arrest and release of criminal aliens. Thus, subsection (c)(1) limits subsec- tion (a)’s first sentence by curbing the discretion to arrest: 16 NIELSEN v. PREAP Opinion of the Court The Secretary must arrest those aliens guilty of a predi- cate offense. And subsection (c)(2) limits subsection (a)’s second sentence by cutting back the Secretary’s discretion over the decision to release: The Secretary may not release aliens “described in” subsection (c)(1)—that is, those guilty of a predicate offense. Accordingly, all the relevant de- tainees will have been arrested by authority that springs from subsection (a), and so, contrary to the Court of Ap- peals’ view, that fact alone will not spare them from sub- section (c)(2)’s prohibition on release. This reading com- ports with the Government’s practice of applying to the arrests of all criminal aliens certain procedural require- ments, such as the need for a warrant, that appear only in subsection (a). See Tr. of Oral Arg. 13–14. The text of itself contemplates that aliens ar- rested under subsection (a) may face mandatory detention under subsection (c). The second sentence in subsection (a)—which generally authorizes the Secretary to release an alien pending removal proceedings—features an excep- tion “as provided in subsection (c).” But if the Court of Appeals were right that subsection (c)(2)’s prohibition on release applies only to those arrested pursuant to subsec- tion (c)(1), there would have been no need to specify that such aliens are exempt from subsection (a)’s release provi- sion. This shows that it is possible for those arrested under subsection (a) to face mandatory detention under subsection (c). We draw a similar inference from the fact that subsection (c)(2), for its part, does not limit manda- tory detention to those arrested “pursuant to” subsection (c)(1) or “under authority created by” subsection (c)(1)— but to anyone so much as “described in” subsection (c)(1). This choice of words marks a contrast with Congress’s reference—in the immediately preceding subsection—to actions by the Secretary that are “authorized under” sub- section (a). See (b). Cf. 18 U.S. C. (refer- ring to “a person arrested under subsection (a)” (emphasis Cite as: 586 U. S. (2019) 1 Opinion Opinion of of the Court ALITO, J. added)). These textual cues indicate that even if an alien was not arrested under authority bestowed by sub- section (c)(1), he may face mandatory detention under subsection (c)(2). 2 But even if the Court of Appeals were right to reject this reading, the result below would be wrong. To see why, assume with the Court of Appeals that only someone arrested under authority created by (1)—rather than the more general —may be detained without a bond hearing. And assume that subsection (c)(1) re- quires immediate arrest. Even then, the Secretary’s fail- ure to abide by this time limit would not cut off her power to arrest under subsection (c)(1). That is so because, as we have held time and again, an official’s crucial duties are better carried out late than never. See (collecting cases). Or more precisely, a statutory rule that officials “ ‘shall’ act within a specified time” does not by itself “pre- clud[e] action later.” v. Peabody Coal Co., 53 U.S. 149, Especially relevant here is our decision in United States v. Montalvo-, There we held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not bar detention after a tardy hearing.” (quoting Montalvo- ). In that case, we refused to “bestow upon the defendant a windfall” and “visit upon the Government and the citizens a severe penalty by mandat- ing release of possibly dangerous defendants every time some deviation from the [statutory] strictures oc- cur[red].” Montalvo-, Instead, we gave effect to the principle that “ ‘if a statute does not specify a consequence for noncompliance with statutory 18 NIELSEN v. PREAP Opinion Opinion of of the Court ALITO, J. timing provisions, the federal courts will not in the ordi- nary course impose their own coercive sanction.’ ” Barn- ). This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Con- gress enacted Cf. Woodford v. Garceau, 538 U.S. 202, 209 (relying on the “legal backdrop” against which “Congress legislated” to clarify what Con- gress enacted). Indeed, we have held of a statute enacted just four years before that because of our case law at the time—never since abrogated—Congress was “pre- sumably aware that we do not readily infer congressional intent to limit an agency’s power to get a mandatory job done merely from a specification to act by a certain time.” ). Here this principle entails that even if subsection (c)(1) were the sole source of au- thority to arrest aliens without granting them hearings, that authority would not evaporate just because officials had transgressed subsection (c)(1)’s command to arrest aliens immediately “when released.” Respondents object that the rule invoked in Montalvo- and related cases does not apply here. In those cases, respondents argue, the governmental authority at issue would have disappeared entirely if time limits were enforced—whereas here the Secretary could still arrest aliens well after their release under the general language in But the whole premise of respondents’ argument is that if the Secretary could no longer act under she would lose a specific power—the power to arrest and detain criminal aliens without a bond hearing. If that is so, then as in other cases, accepting respondents’ deadline- based argument would be inconsistent with “the design and function of the statute.” Montalvo-, 495 U. S., Cite as: 586 U. S. (2019) 19 Opinion Opinion of of the Court ALITO, J. at 19. From Congress’s perspective, after all, it is irrele- vant that the Secretary could go on detaining criminal aliens subject to a bond hearing. Congress enacted man- datory detention precisely out of concern that such indi- vidualized hearings could not be trusted to reveal which “deportable criminal aliens who are not detained” might “continue to engage in crime [or] fail to appear for their removal hearings.” 538 U.S., at And having thus required the Secretary to impose mandatory deten- tion without bond hearings immediately, for safety’s sake, Congress could not have meant for judges to “enforce” this duty in case of delay by—of all things—forbidding its execution. Cf. Montalvo-, (“The end of exacting compliance with the letter” of the Bail Reform Act’s requirement that a defendant receive a hearing immediately upon his first appearance before a judicial officer “cannot justify the means of exposing the public to an increased likelihood of violent crimes by per- sons on bail, an evil the statute aims to prevent”). Especially hard to swallow is respondents’ insistence that for an alien to be subject to mandatory detention under the alien must be arrested on the day he walks out of jail (though respondents allow that it need not be at the jailhouse door—the “parking lot” or “bus stop” would do). Tr. of Oral Arg. 44. “Assessing the situa- tion in realistic and practical terms, it is inevitable that” respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control. Montalvo-, Cf. Regions Hospital v. Shalala, 2 U.S. 448, (“The Secre- tary’s failure to meet the deadline, a not uncommon occur- rence when heavy loads are thrust on administrators, does not mean that [she] lacked power to act beyond it”). To give just one example, state and local officials sometimes rebuff the Government’s request that they give notice when a criminal alien will be released. Indeed, over a 20 NIELSEN v. PREAP Opinion of the Court span of less than three years (from January to Sep- tember 2016), the Government recorded “a total of 21,205 declined [requests] in 56 counties in 48 states including the District of Columbia.” ICE, Fiscal Year 2016 ICE Enf. and Removal Operations Rep. 9. Nor was such local re- sistance unheard of when Congress enacted the language of in 1996. See S. Rep. No. 104–48, p. 28 (1995). Under these circumstances, it is hard to believe that Con- gress made the Secretary’s mandatory-detention authority vanish at the stroke of midnight after an alien’s release. In short, the import of our case law is clear: Even if subsection (c) were the only font of authority to detain aliens without bond hearings, we could not read its “when released” clause to defeat officials’ duty to impose such mandatory detention when it comes to aliens who are arrested well after their release. IV Respondents protest that reading in the man- ner set forth here would render key language superfluous, lead to anomalies, and violate the canon of constitutional avoidance. We answer these objections in turn. A According to respondents, the Government’s reading of flouts the interpretive canon against surplus- age—the idea that “every word and every provision is to be given effect [and that n]one should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” Scalia, Reading Law, at 14. See (plurality opinion of Scalia, J.) (citing the “cardinal rule of statutory interpretation that no provision should be con- strued to be entirely redundant”). Respondents’ surplus- age argument has two focal points. First, respondents claim that if they face mandatory Cite as: 586 U. S. (2019) 21 Opinion of the Court detention even though they were arrested well after their release, then “when released” adds nothing to para- graph (1). In fact, however, it still has work to do. For one thing, it clarifies when the duty to arrest is triggered: upon release from criminal custody, not before such re- lease or after the completion of noncustodial portions of a criminal sentence (such as a term of “parole, supervised release, or probation,” as the paragraph goes on to empha- size). Thus, paragraph (1) does not permit the Secretary to cut short an alien’s state prison sentence in order to usher him more easily right into immigration detention— much as another provision prevents officials from actually removing an alien from the country “until the alien is released from imprisonment.” 8 U.S. C. And from the other end, as paragraph (1)’s language makes clear, the Secretary need not wait for the sentenc- ing court’s supervision over the alien to expire. The “when released” clause also serves another purpose: exhorting the Secretary to act quickly. And this point answers respondents’ second surplusage claim: that the “Transition Period Custody Rules” enacted along with would have been superfluous if did not call for immediate arrests, since those rules authorized delays in ’s implementation while the Government expanded its capacities. See Matter of Garvin-Noble, 21 I. & N. Dec. 62, 65 (BIA 199). This argument again confuses what the Secretary is obligated to do with the consequences that follow if the Secretary fails (for what- ever reason) to fulfill that obligation. The transition rules delayed the onset of the Secretary’s obligation to begin making arrests as soon as covered aliens were released from criminal custody, and in that sense they were not superfluous.6 This is so even though, had the transition —————— 6 The dissent asks why Congress would have felt the need to provide for a delay if it thought that either way, the Secretary would get to 22 NIELSEN v. PREAP Opinion of the Court rules not been adopted, the Secretary’s failure to make an arrest immediately upon a covered alien’s release would not have exempted the alien from mandatory detention under B The Court of Appeals objected that the Government’s reading of would have the bizarre result that some aliens whom the Secretary need not arrest at all must nonetheless be detained without a hearing if they are –1203. This rather com- plicated argument, as we understand it, proceeds as fol- lows. Paragraph (2) requires the detention of aliens “de- scribed in paragraph (1).” While most of the aliens described there have been convicted of a criminal offense, this need not be true of aliens captured by subparagraph (D) in particular—which covers, for example, aliens who are close relatives of terrorists and those who are believed likely to commit a terrorist act. See But if, as the Government maintains, any alien who falls under subparagraphs (A)–(D) is thereby ineligible for release from immigration custody, then the Secretary would be forbidden to release even these aliens who were —————— deny a hearing to aliens arrested well after release. Post, at 10; see also post, at 13–14. The answer is that Congress does not draft legisla- tion in the expectation that the Executive will blow through the dead- lines it sets. That is why Congress specifies any deadlines for executive duties at all; and here it explains why Congress furthermore provided that the deadline it set for this particular duty (to arrest criminal aliens upon their release) would not take effect right away. In fact, if the dissent’s argument from the transition rules were sound—i.e., if textual evidence that Congress expects the Executive to meet a deadline (once it officially takes effect) were proof that Congress wanted the deadline enforced by courts—then every case involving an express statutory deadline would be one in which Congress intended for courts to enforce the deadline. But this would include, by definition, all of the loss-of-authority cases we discussed above, see Part –B–2, supra—a long line of precedent that the dissent does not question. Cite as: 586 U. S. (2019) 23 Opinion of the Court never convicted or perhaps even charged with a crime, once she arrested them. Yet she would be free not to arrest them to begin with (or so the Court of Appeals assumed), since she is obligated to arrest aliens “when released,” and there was no prior custody for these aliens to be “released” from. Therefore, the court concluded, the Government’s position has the absurd implication that aliens who were never charged with a crime need not be arrested pending a removal determination, but if they are arrested, they must be detained and cannot be released on bond or parole. We agree that it would be very strange for Congress to forbid the release of aliens who need not be arrested in the first place, but the fact is that the Government’s reading (and ours) does not have that incongruous result. The real anomalies here would flow instead from the Court of Appeals’ interpretation. To begin with the latter point: Under the Court of Ap- peals’ reading, the mandatory-detention scheme would be gentler on terrorists than it is on garden-variety offenders. To see why, recall first that subparagraphs (A)–(C) cover aliens who are inadmissible or deportable based on the commission of certain criminal offenses, and there is no dispute that the statute authorizes their mandatory de- tention when they are released from criminal custody. And the crimes covered by these subparagraphs include, for example, any drug offense by an adult punishable by more than one year of imprisonment, see 1226(c)(1)(A), as well as a variety of tax offenses, see §(1)(B), 122(a)(2)(A)(iii); But notice that aliens who fall within subparagraph (D), by contrast, may never have been arrested on criminal charges—which according to the court below would exempt them from mandatory deten- tion. Yet this subparagraph covers the very sort of aliens for which Congress was most likely to have wanted to 24 NIELSEN v. PREAP Opinion of the Court require mandatory detention—including those who are representatives of a terrorist group and those whom the Government has reasonable grounds to believe are likely to engage in terrorist activities. See (IV), 1226(c)(1)(D). Thus, by the Court of Appeals’ logic, Congress chose to spare terrorist aliens from the rigors of mandatory detention—a mercy withheld from almost all drug offenders and tax cheats. See Brief for National Immigrant Justice Center as Amicus Curiae –8. That result would be incongruous. Along similar lines, note that one (1) predicate reaches aliens who necessarily escape conviction: those “for whom immunity from criminal jurisdiction was exer- cised.” See (1)(A). And other predicates sweep in aliens whom there is no reason to expect police (as opposed to immigration officials) will have reason to arrest: e.g., the “spouse or child of an alien” who recently engaged in terrorist activity. see (1)(D). It would be point- less for Congress to have covered such aliens in subsec- tions (c)(1)(A)–(D) if subsection (c)’s mandates applied only to those emerging from jail. Thus, contrary to the Court of Appeals’ interpretation of the “when released” clause as limiting the class of aliens subject to mandatory detention, we read subsection (c)(1) to specify the timing of arrest (“when the alien is re- leased”) only for the vast majority of cases: those involving criminal aliens who were once in criminal custody. The paragraph simply does not speak to the timeline for ar- resting the few who had no stint in jail. (And why should —————— In Alafyouny, for example, an alien subject to mandatory detention had not been charged with any crime. Rather, in a hearing to consider his application for adjustment of status, an immigration judge found that the alien had engaged in terrorism- related activity identified in which qualified him for mandatory detention under (1)(D). at Cite as: 586 U. S. (2019) 25 Opinion of the Court it? Presumably they—unlike those serving time—are to be detained as they come across the Government’s radar and any relevant evidentiary standards are satisfied.8) In short, we read the “when released” directive to apply when there is a release. In other situations, it is simply not relevant. It follows that both of subsection (c)’s man- dates—for arrest and for release—apply to any alien linked with a predicate offense identified in subpara- graphs (A)–(D), regardless of exactly when or even whether the alien was released from criminal custody. C Finally, respondents perch their reading of — unsteadily, as it turns out—on the canon of constitutional avoidance. This canon provides that “[w]hen ‘a serious doubt’ is raised about the constitutionality of an act of Congress, ‘. this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’ ” Jennings, 583 U. S., at (slip op., at 12) (quoting 62 (1932)). Respondents say we should be uneasy about endorsing any reading of that would mandate arrest and detention years after aliens’ release from criminal cus- tody—when many aliens will have developed strong ties to the country and a good chance of being allowed to stay if given a hearing. At that point, respondents argue, man- datory detention may be insufficiently linked to public benefits like protecting others against crime and ensuring that aliens will appear at their removal proceedings. In respondents’ view, detention in that scenario would raise —————— 8 See n. Detainees who deny that they satisfy any predicate may challenge their mandatory detention in a Joseph hear- ing. See Matter of Joseph, 22 I. & N. Dec. 99 See also Jennings v. Rodriguez, 583 U. S. n. 1 (2018) (slip op., at 5, n. 1). 26 NIELSEN v. PREAP Opinion of the Court constitutional doubts under v. Davis, 533 U.S. 68 (2001), which held that detention violates due process absent “adequate procedural protections” or “special justi- fication[s]” sufficient to outweigh one’s “ ‘constitutionally protected interest in avoiding physical restraint,’ ” at 690 (quoting 1 U.S. 346, (199)). Thus, respondents urge, we should adopt a read- ing of —their reading—that avoids this result. The trouble with this argument is that constitutional avoidance “ ‘comes into play only when, after the applica- tion of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’ ” Jennings, 583 U. S., at (slip op., at 12). The canon “has no applica- tion” absent “ambiguity.” 54 U.S. 40, 50 (internal quotation marks omitted). See also (“Despite this constitutional problem, if Congress has made its intent in the statute clear, we must give effect to that intent” (internal quota- tion marks omitted)). Here the text of cuts clearly against respondents’ position, see Part making constitutional avoidance irrelevant. We emphasize that respondents’ arguments here have all been statutory. Even their constitutional concerns are offered as just another pillar in an argument for their preferred reading of the language of —an idle pillar here because the statute is clear. While respondents might have raised a head-on constitutional challenge to they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges—that is, constitutional challenges to applica- tions of the statute as we have now read it. * * * The judgments of the Court of Appeals for the Ninth Circuit are reversed, and the cases are remanded for further proceedings. It is so ordered. Cite as: 586 U. S. (2019) 1 KAVANAUGH, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–13 KIRSTJEN M. NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL., PETITIONERS v. MONY PREAP, ET AL. BRYAN WILCOX, ACTING FIELD OFFICE DIRECTOR, IMMIGRATION AND CUSTOMS ENFORCEMENT, ET AL., PETITIONERS v. BASSAM YUSUF KHOURY, ET AL.

Justice Breyer

dissenting

Nielsen v. Preap

2019-03-19

https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/

https://www.courtlistener.com/api/rest/v3/clusters/4601079/

2018-010

A provision of the Immigration and Nationality Act, 8 U.S. C. §1226(c), focuses upon potentially deportable noncitizens who have committed certain offenses or have ties to terrorism. It requires the Secretary of Homeland Security to take those aliens into custody “when . . . re- leased” from prison and to hold them without a bail hear- ing until Government authorities decide whether to deport them. The question is whether this provision limits the class of persons in the “no-bail-hearing” category to only those aliens who were taken into custody “when . . . re- leased” from prison, or whether it also places in that “no- bail-hearing” category those aliens who were taken into custody years or decades after their release from prison. The critical statutory language is contained in para- graph (2) of this provision. That paragraph says (with one exception not relevant here) that “an alien described in paragraph (1)” must be held without a bail hearing. Here we must decide what these words mean. Do the words “an 2 NIELSEN v. PREAP BREYER, J., dissenting alien described in paragraph (1)” refer only to those aliens whom the Secretary, following paragraph (1)’s instruc- tions, has “take[n] into custody . . . when the alien is re- leased” from, say, state or federal prison? Or do these words refer instead to all aliens who have ever committed one of the offenses listed in paragraph (1), regardless of when these aliens were “released” from prison? For present purposes, I accept the Court’s holding in Jennings v. Rodriguez, 583 U. S. ___ (2018), that para- graph (2) forbids bail hearings for aliens “described in paragraph (1).” But see id., at ___ (BREYER, J., dissenting) (slip op., at 2) (interpreting paragraph (2) as not forbid- ding bail hearings, as the Constitution likely requires them); id., at ___ (majority opinion) (slip op., at 29) (declin- ing to reach constitutional question). Here, however, the Court goes much further. The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody “when . . . released” from prison. Under the majority’s view, the statute for- bids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison. The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordi- nary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent. I A The relevant statute, 8 U.S. C. §1226, is entitled “Ap- prehension and detention of aliens.” See Appendix A, infra. Its first subsection, subsection (a), is entitled “Ar- rest, detention, and release.” Subsection (a) sets forth the background rule. It gives the Secretary of Homeland Security (formerly the Attorney General) the authority to “arres[t] and detai[n]” an “alien . . . pending a decision on Cite as: 586 U. S. ____ (2019) 3 BREYER, J., dissenting whether the alien is to be removed from the United States.” §1226(a). See ante, at 3, n. 2. It adds that the Secretary “may release the alien” on “bond” or “conditional parole.” §1226(a)(2). Federal regulations provide that a person detained under this subsection must receive a bail hearing. 8 CFR §§236.1(d)(1), 1236.1(d)(1) (2018). With respect to release, however, subsection (a) adds the words “[e]xcept as provided in subsection (c).” 8 U.S. C. §1226(a). The subsection containing the exception to which (a) refers—namely, subsection (c)—is entitled “Detention of criminal aliens.” It consists of two paragraphs. Paragraph (1), entitled “Custody,” says that the Secre- tary “shall take into custody any alien who” is “inadmissi- ble” or “deportable” (by reason of having committed cer- tain offenses or having ties to terrorism) “when the alien is released,” presumably from local, state, or federal criminal custody. §1226(c)(1) (emphasis added). Because the rele- vant offenses are listed in four subparagraphs headed by the letters “A,” “B,” “C,” and “D,” I shall refer to the rele- vant aliens as “ABCD” aliens. Thus, for present purposes, paragraph (1) says that the Secretary “shall take into custody any” ABCD alien “when the alien is released” from criminal custody. Paragraph (2), entitled “Release,” says that the Secre- tary “may release an alien described in paragraph (1) only if ” the alien falls within a special category—not relevant here—related to witness protection. §1226(c)(2) (emphasis added). We held last Term in Jennings that paragraph (2) forbids a bail hearing for “an alien described in paragraph (1)” unless the witness protection exception applies. 583 U. S., at ___–___ (majority opinion) (slip op., at 20–22). Here we focus on the meaning of a key phrase in para- graph (2): “an alien described in paragraph (1).” This is the phrase that identifies the aliens to whom paragraph (2) (and its “no-bail-hearing” requirement) applies. Does 4 NIELSEN v. PREAP BREYER, J., dissenting paragraph (1) “describ[e]” all ABCD aliens, even those whom the Secretary has “take[n] into custody” many years after their release from prison? Or does it “describ[e]” only those aliens whom the Secretary has “take[n] into cus- tody . . . when the alien [was] released” from prison? B The issue may sound technical. But it is extremely important. That is because the Government’s reading of the statute—namely, that paragraph (2) forbids bail hear- ings for all ABCD aliens regardless of whether they were detained “when . . . released” from criminal custody— would significantly expand the Secretary’s authority to deny bail hearings. Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of re- lease; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of “moral turpitude” such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of re- moval. These are not mere hypotheticals. See Appendix B, infra. Thus, in terms of potential consequences and basic American legal traditions, see infra, at 11–12, the question before us is not a “narrow” one, ante, at 2 (KAVANAUGH, J., concurring). Why would Congress have granted the Secretary such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and Cite as: 586 U. S. ____ (2019) 5 BREYER, J., dissenting common-law traditions? See Jennings, supra, at ___–___ (BREYER, J., dissenting) (slip op., at 8–10). The answer is that Congress did not do so. Ordinary tools of statutory interpretation demonstrate that the authority Congress granted to the Secretary is far more limited. II The statute’s language, its structure, and relevant canons of interpretation make clear that the Secretary cannot hold an alien without a bail hearing unless the alien is “take[n] into custody . . . when the alien is re- leased” from criminal custody. §1226(c)(1). A Consider the statute’s language. Paragraph (1) of sub- section (c) provides that the Secretary “shall take into custody” any ABCD alien—that is, any alien who is “in- admissible” or “deportable” under the subparagraphs labeled “A,” “B,” “C,” and “D”—“when the alien is released” from, say, state or federal prison. Ibid. Paragraph (2), meanwhile, generally forbids a bail hearing for “an alien described in paragraph (1).” §1226(c)(2). The key phrase in paragraph (2) is “an alien described in paragraph (1).” As a matter of ordinary meaning and usage, the words “take into custody . . . when the alien is released” in paragraph (1) form part of the description of the “alien”: An “alien described in paragraph (1)” is an ABCD alien whom the Secretary has “take[n] into cus- tody . . . when the alien is released” from prison. The majority emphasizes a grammatical point—namely, that ordinarily only adjectives or adjectival phrases “modify” nouns. Ante, at 12. But the statute does not use the word “modify.” It uses the word “described.” While the word “describe” will in some contexts refer only to the words that directly “modify” a noun, normally it has a broader meaning. Compare American Heritage Dictionary 490 6 NIELSEN v. PREAP BREYER, J., dissenting (5th ed. 2011) (to “describe” is to “convey an idea or im- pression of ”) and Webster’s Third New International Dictionary 610 (1986) (to “describe” is to “convey an image or notion of ”) with P. Peters, The Cambridge Guide to English Usage 355 (2004) (defining a “modifie[r]” as a word that “qualifies” a noun). The common rules of grammar make the broad scope of the word “described” obvious. They demonstrate that a noun often is “described” by more than just the adjectives that modify it. Consider the following sentence: “The well- behaved child was taken by a generous couple to see Ham- ilton.” That sentence, written in the passive voice, de- scribes the “child” not only as “well-behaved” but also as someone “taken by a generous couple to see Hamilton.” The description of the child would not differ were we to write the sentence in the active voice: “The generous couple took the well-behaved child to see Hamilton.” The action taken by the “generous couple” (“took . . . to see Hamilton”) still “describes” the “child,” even though these words do not “modify” the word “child.” That is because a person who has been subjected to an action can be de- scribed by that action no less than by an adjective. See Peters, supra, at 386 (describing such a person as someone “affected by the action”); B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 452 (2016) (describing such a person as someone who “is acted on by or receives the action”); see also R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 1436 (2002) (noting the “large-scale overlap” between adjectives and certain verb forms). An example illustrates how these principles apply to the statute at issue here. Imagine the following cookbook recipe. Instruction (1) says: “(1) Remove the Angus steak from the grill when the steak is cooked to 120 degrees Fahrenheit.” Instruction (4) says: “(4) Let the steak de- scribed in Instruction (1) rest for ten minutes and then Cite as: 586 U. S. ____ (2019) 7 BREYER, J., dissenting serve it.” What would we say of a chef who grilled an Angus steak to 185 degrees Fahrenheit, served it, and then appealed to these instructions—particularly the word “described” in Instruction (4)—as a justification? That he was not a good cook? That he had an odd sense of humor? Or simply that he did not understand the instructions? The chef would have no good textual defense: The steak “described in Instruction (1)” is not just an “Angus” steak, but an “Angus” steak that must be “remove[d] . . . when the steak is cooked to 120 degrees Fahrenheit.” By the same logic, the alien in paragraph (1) is “described” not only by the four clauses—A, B, C, and D—that directly modify the word “alien,” but also by the verb (“shall take”) and that verb’s modifier (“when the alien is released”). The majority argues that “the crucial point” is that the phrase “when the alien is released” plays “no role in iden- tifying for the Secretary which aliens she must immediately arrest.” Ante, at 13. That may be so. But why is that a “crucial point” in the majority’s favor? After all, in the example above, the words “[r]emove . . . from the grill when the steak is cooked to 120 degrees Fahrenheit” do not tell our chef what kind of steak to cook in the first place. (The word “Angus” does that.) Even so, those words still “describe” the steak that must be served in Instruction (4). Why? Because by the time our chef gets to Instruction (4), the recipe contemplates that the action in Instruction (1) has been completed. At that point, the “steak described in Instruction (1)” is a steak that has been cooked in the manner mandated by Instruction (1). The same is true of the two paragraphs before us. The key word “described” appears not in paragraph (1), but in paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the release provision, it contemplates that the action mandated by paragraph (1)—namely, detention—has already occurred. Thus, the function of the phrase “an alien described in 8 NIELSEN v. PREAP BREYER, J., dissenting paragraph (1)” is not to describe who must be detained, but instead to describe who must be denied bail. In short, the language demonstrates that an alien is “described in paragraph (1)”—and therefore subject to paragraph (2)’s bar on bail hearings—only if the alien is “take[n] into custody . . . when the alien is released.” B The statute’s structure and context support this reading of the phrase “an alien described in paragraph (1).” First, “Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line.” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip op., at 9). Congress employed that structure “to make precise cross-references” throughout the immigration code. Ibid. As relevant here, in a different detention provision enacted alongside the provision at issue here, Congress said that the Government “may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii).” Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), §303(b)(3)(B), 110 Stat. 3009–587. Yet Congress did not make such a precise cross-reference in paragraph (2): It did not refer to “an alien described in subparagraphs (A)–(D) of paragraph (1),” as it could have—and would have—done had it in- tended the majority’s narrow interpretation. Instead, it referred to aliens “described” in the entirety of paragraph (1). We usually “presume differences in language like this convey differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U. S. ___, ___ (2017) (slip op., at 6). The cross-reference to all of paragraph (1) reinforces that “an alien described in paragraph (1)” is not just an ABCD alien, but an ABCD alien whom (in the words of paragraph (1)) the Secretary “take[s] into custody . . . when the alien is released” from criminal confinement. Cite as: 586 U. S. ____ (2019) 9 BREYER, J., dissenting Second, consider the structural similarity between subsections (a) and (c). See Appendix A, infra. The first sentence of subsection (a) sets forth a detention rule: An “alien may be arrested and detained” pending a decision on the alien’s removal. 8 U.S. C. §1226(a). And the sec- ond sentence sets forth a release rule that allows for re- lease on bond and parole. Ibid. Subsection (c) has a paral- lel structure. The first sentence (namely, paragraph (1)) says that the Secretary must “take into custody” a subset of those aliens “when the alien is released” from criminal custody. §1226(c)(1). And the second sentence (namely, paragraph (2)) sets forth the rule that “an alien described in paragraph (1)” generally may not be released. §1226(c)(2). It is obvious that the second sentence of (a) applies only to those aliens who are detained following the rule in (a)’s first sentence. Parallel structure suggests that the same is true in (c): The second sentence of (c) applies only to those detained following the rule in (c)’s first sentence. Subsection (a)’s reference to (c) strengthens this structural inference: Subsection (a) says that its release rule applies “[e]xcept as provided in subsection (c)”—that is, except as provided in the whole of subsection (c), not simply para- graph (2) or the few lines the majority picks from (c)’s text. Thus, the release rule in each subsection (the second sentence) applies only if the Secretary complies with the detention rule in that subsection (the first sentence). In light of “the parallel structures of these provisions,” it would “flou[t] the text” to find that an alien is subject to (c)’s release rule, which forbids release, without also find- ing that the alien was detained in accordance with (c)’s detention rule, which requires the alien to be detained “when . . . released.” Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 132 (1989). The majority responds that subsections (a) and (c) do not “establis[h] separate sources of arrest and release 10 NIELSEN v. PREAP BREYER, J., dissenting authority,” and that (c) is merely “a limit” on the authority granted by (a). Ante, at 15. But even if (c) were treated as a “limit” on the authority granted by (a), the parallel structure of the statute would still point to the same con- clusion: The Secretary must comply with the limit on detention in the first sentence of (c) in order to invoke the rule on release in the second sentence of (c). Third, Congress’ enactment of a special “transition” statute strengthens the point. When Congress enacted subsection (c), it recognized that there might be “insuffi- cient detention space” and “personnel” to carry out subsec- tion (c)’s requirements. IIRIRA, §303(b)(2), 110 Stat. 3009–586. It therefore authorized the Government to delay implementation of subsection (c)—initially for one year, then for a second year. Ibid. If the majority were correct that the “when . . . released” provision does not set a time limit on the Secretary’s authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Govern- ment simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-year transi- tion period? The majority responds that the transition statute still served a purpose: to “dela[y] the onset of the Secretary’s obligation to begin making arrests.” Ante, at 21. But that just raises the question: Why would Congress have needed to “dela[y] the onset of the Secretary’s obliga- tion” if it thought that the Secretary could detain aliens without a bail hearing after a year-long delay? The major- ity offers no good answer. The transition statute therefore strongly suggests that Congress viewed the “when . . . released” provision as a constraint on the Secretary’s authority to deny a bail hearing. The transition statute also supports this conclusion in another respect: It demonstrates that Congress anticipated Cite as: 586 U. S. ____ (2019) 11 BREYER, J., dissenting that subsection (c) would apply only to aliens “released” from state or federal prison. As noted, clauses A, B, C, and D in paragraph (1) cover some aliens who have never been in criminal custody. Supra, at 4. Even the majority acknowledges that it would be bizarre if these aliens could be detained without a bail hearing. Ante, at 23. The transition statute confirms as much: It indicates that “the provisions of [subsection (c)] shall apply to individuals released after” the transition period concludes. IIRIRA, §303(b)(2), 110 Stat. 3009–586 (emphasis added). From this it follows that Congress saw paragraph (2) as forbid- ding bail hearings only for aliens who have been “re- leased.” That, however, can be true only if the “when . . . released” provision limits the class of aliens subject to paragraph (2)’s “no-bail-hearing” requirement. The major- ity’s contrary reading, under which paragraph (2) applies “regardless of . . . whether the alien was released from criminal custody,” ante, at 25, conflicts with how Congress itself described the scope of subsection (c) when it enacted the statute. C Even if statutory text and structure were not enough to resolve these cases, the Government’s reading would fail for another reason. A well-established canon of statutory interpretation provides that, “if fairly possible,” a statute must be construed “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916). See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (using word “serious” instead of “grave”). The Government’s reading of the statute, which the majority adopts, construes the statute in a way that creates serious constitutional problems. That reading would give the Secretary authority to arrest and detain aliens years after 12 NIELSEN v. PREAP BREYER, J., dissenting they have committed a minor crime and then hold them without a bail hearing for months or years. This possibil- ity is not simply theoretical. See Appendix B, infra. In Jennings, I explained why I believe the practice of indefinite detention without a bail hearing likely deprives a “person” of his or her “liberty . . . without due process of law.” U. S. Const., Amdt. 5. See 583 U. S., at ___ (dissent- ing opinion) (slip op., at 5). This practice runs counter to “those settled usages and modes of proceeding existing in the common and statute law of England, before the emi- gration of ” the Founders’ “ancestors.” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856). It runs counter to practices well established at the time of the American Revolution. Jennings, supra, at ___– ___ (slip op., at 9–10). And it runs counter to common sense: Why would the law grant a bail hearing to a person accused of murder but deny it to a person who many years before committed a crime perhaps no greater than pos- sessing a stolen bus transfer? See Appendix B, infra. I explained much of the constitutional problem in my dissent in Jennings. Rather than repeat what I wrote there, I refer the reader to that opinion. See Jennings, supra, at ___ (slip op., at 1). I add only the obvious point that a bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community. The majority’s reading also creates other anomalies. As I have said, by permitting the Secretary to hold aliens without a bail hearing even if they were not detained “when . . . released,” the majority’s reading would allow the Secretary to hold indefinitely without bail those who have never been to prison and who received only a fine or probation as punishment. Supra, at 4, 10–11. See, e.g., Cite as: 586 U. S. ____ (2019) 13 BREYER, J., dissenting §1226(c)(1)(A) (incorporating §1182(a)(2), which covers controlled substance offenses for which the maximum penalty exceeds one year); Brief for Advancement Project et al. as Amici Curiae 19, 24, 29 (describing examples). That fact simply aggravates the constitutional problem. III Although the Court of Appeals correctly concluded that paragraph (2)’s prohibition on release applies only to an alien whom the Secretary “take[s] into custody . . . when the alien is released” from criminal custody, it also held that the phrase “when the alien is released” means that the Secretary must grant a bail hearing to any alien who is not “ ‘immediately detained’ when released from crimi- nal custody.” Preap v. Johnson, 831 F.3d 1193, 1207 (CA9 2016). I disagree with the Court of Appeals as to the meaning of the phrase “when the alien is released.” A As an initial matter, the phrase “when the alien is released” imposes an enforceable statutory deadline. I cannot agree with JUSTICE ALITO, who writes for a plurality of the Court on this point, that our cases holding certain statutory deadlines unenforceable are applicable here. Ante, at 17. See, e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 152 (2003) (holding that the Government’s untimeliness did not bar it from taking action beyond the statutory deadline); United States v. Montalvo-Murillo, 495 U.S. 711, 713–714 (1990) (holding that a provision requiring a detention hearing to “ ‘be held immediately’ ” did not bar detention in the event of a late hearing); Brock v. Pierce County, 476 U.S. 253, 266 (1986) (holding that the Government’s failure to observe a 120-day statutory deadline did not deprive it of authority under the statute). I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the 14 NIELSEN v. PREAP BREYER, J., dissenting Government must be enforced at least in contexts where “other part[s]” of the relevant statutes indicate that the time limit must be enforced, Montalvo-Murillo, supra, at 717; see also Barnhart, supra, at 161, 163; Dolan v. United States, 560 U.S. 605, 613 (2010); where the statute “ ‘specif[ies] a consequence for noncompliance’ ” with the time limit, Barnhart, supra, at 159 (quoting United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993)); or where the harms caused by the Government’s delay are likely to be serious, see Dolan, supra, at 615– 616; Montalvo-Murillo, supra, at 719–720. Here, the special transition statute Congress enacted alongside subsection (c) makes clear that Congress ex- pected that the mandate that an alien be detained “when . . . released” would be enforceable. Congress nei- ther wished for nor expected the Secretary to detain aliens more than a year after their release from criminal custody. IIRIRA, §303(b)(2), 110 Stat. 3009–586. Why else would Congress have enacted a statute permitting the Govern- ment, due to “insufficient detention space and Immigra- tion and Naturalization Service personnel,” to delay im- plementation of the entirety of subsection (c) for one year? Ibid. As I have said, had Congress read the phrase “when the alien is released” as the plurality now reads it, the Government could have delayed implementation for as long as it liked without the need for any transition statute. Supra, at 10. The transition statute demonstrates that Congress viewed the phrase “when the alien is released” as imposing a deadline. Based on the transition statute, the Secretary may not delay detention under subsection (c) for longer than one year. Moreover, the statute does “ ‘specify a consequence’ ” for the Secretary’s failure to detain an alien “when the alien is released.” Barnhart, supra, at 159 (quoting James Daniel Good, supra, at 63). In that case, subsection (c) will not apply, and the Secretary must fall back on subsection (a), Cite as: 586 U. S. ____ (2019) 15 BREYER, J., dissenting the default detention and release provision. Critically, subsection (a) does not guarantee release. Rather, it leaves much to the Government’s judgment: By regulation, aliens who are subject to subsection (a)’s default detention and release rules will simply receive a hearing at which they can attempt to demonstrate that, if released, they will not pose a risk of flight or a threat to the community. 8 CFR §§236.1(d)(1), 1236.1(d)(1). Finally, I have already mentioned the many harms that could befall aliens whom the Secretary does not detain “when . . . released.” They range from long periods of detention, to detention years or even decades after the alien’s release from criminal custody, to the risk of split- ting up families that are long established in a community. Supra, at 4. Thus, unlike some of our prior cases, the harm from a missed deadline hardly can be described as “insignificant.” Montalvo-Murillo, supra, at 719. The plurality objects that “Congress could not have meant for judges to ‘enforce’ ” the mandatory detention requirement “in case of delay by—of all things—forbidding its execution.” Ante, at 19. But treating the “when the alien is released” clause as an enforceable limit does not prohibit the Secretary from detaining the aliens that subsection (c) requires her to detain. Rather, the Secre- tary’s failure to comply with the “when the alien is re- leased” clause carries only one consequence: The Secretary cannot deny a bail hearing. B So what does the phrase “when the alien is released” mean? The word “when” can, but does not always, mean “[a]t the time that,” American Heritage Dictionary, at 1971, or “just after the moment that,” Webster’s Third New International Dictionary, at 2602. But the word only “[s]ometimes impl[ies] suddenness.” 20 Oxford English Dictionary 209 (2d ed. 1989). It often admits of at least 16 NIELSEN v. PREAP BREYER, J., dissenting some temporal delay. A child who is told to “mow the lawn, please, when you get home from school” likely does not have to mow the lawn the second she comes into the house. She can do a few other things first. Mindful of “the greater immigration-related expertise of the Executive Branch” and “the serious administrative needs and concerns inherent in the necessarily extensive [Government] efforts to enforce this complex statute,” I would interpret the word “when” in the same manner as we interpreted other parts of this statute in Zadvydas v. Davis, 533 U.S. 678, 700 (2001). The words “when the alien is released” require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody—presumptively no more than six months. If the Secretary does not do so, she must grant a bail hearing. This presumptive 6-month limit is consistent with how long the Government can detain certain aliens while they are awaiting removal from the country. Id., at 682, 701 (interpreting a different provi- sion, §1231(a)(6)). To insist upon similar treatment in this context would give the Government sufficient time to detain aliens following their release from local, state, or federal criminal custody. It would also ensure that the Government does not fall outside the 1-year maximum dictated by the transition statute. See supra, at 10, 14. IV To reiterate: The question before us is not “narrow.” Ante, at 2 (KAVANAUGH, J., concurring). See supra, at 4. That is because we cannot interpret the words of this specific statute without also considering basic promises that America’s legal system has long made to all persons. In deciphering the intent of the Congress that wrote this statute, we must decide—in the face of what is, at worst, linguistic ambiguity—whether Congress intended that persons who have long since paid their debt to society Cite as: 586 U. S. ____ (2019) 17 BREYER, J., dissenting would be deprived of their liberty for months or years without the possibility of bail. We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law,” U. S. Const., Amdt. 5; the Nation’s original commitment to protect the “unalienable” right to “Liberty”; and, less abstractly and more directly, the longstanding right of virtually all per- sons to receive a bail hearing. I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress’ likely intent, an intent that is con- sistent with our basic values. To speak more technically, I believe that aliens are subject to paragraph (2)’s bar on release only if they are detained “when . . . released” from criminal custody. To speak less technically, I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood. For these reasons, with respect, I dissent. 18 NIELSEN v. PREAP AppendixBA , J., to the REYER dissenting opinion of BREYER, J.

A provision of the Immigration and Nationality Act, 8 U.S. C. focuses upon potentially deportable noncitizens who have committed certain offenses or have ties to terrorism. It requires the Secretary of Homeland Security to take those aliens into custody “when re- leased” from prison and to hold them without a bail hear- ing until Government authorities decide whether to deport them. The question is whether this provision limits the class of persons in the “no-bail-hearing” category to only those aliens who were taken into custody “when re- leased” from prison, or whether it also places in that “no- bail-hearing” category those aliens who were taken into custody years or decades after their release from prison. The critical statutory language is contained in para- graph (2) of this provision. That paragraph says (with one exception not relevant here) that “an alien described in paragraph (1)” must be held without a bail hearing. Here we must decide what these words mean. Do the words “an 2 NIELSEN v. PREAP BREYER, J., dissenting alien described in paragraph (1)” refer only to those aliens whom the Secretary, following paragraph (1)’s instruc- tions, has “take[n] into custody when the alien is re- leased” from, say, state or federal prison? Or do these words refer instead to all aliens who have ever committed one of the offenses listed in paragraph (1), regardless of when these aliens were “released” from prison? For present purposes, I accept the Court’s holding in v. Rodriguez, 583 U. S. (2018), that para- graph (2) forbids bail hearings for aliens “described in paragraph (1).” But see at (BREYER, J., dissenting) (slip op., at 2) (interpreting paragraph (2) as not forbid- ding bail hearings, as the Constitution likely requires them); at (majority opinion) (slip op., at 29) (declin- ing to reach constitutional question). Here, however, the Court goes much further. The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody “when released” from prison. Under the majority’s view, the statute for- bids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison. The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordi- nary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent. I A The relevant statute, 8 U.S. C. is entitled “Ap- prehension and detention of aliens.” See Appendix A, infra. Its first subsection, subsection (a), is entitled “Ar- rest, detention, and release.” Subsection (a) sets forth the background rule. It gives the Secretary of Homeland Security (formerly the Attorney General) the authority to “arres[t] and detai[n]” an “alien pending a decision on Cite as: 586 U. S. (2019) 3 BREYER, J., dissenting whether the alien is to be removed from the United States.” See ante, at 3, n. 2. It adds that the Secretary “may release the alien” on “bond” or “conditional parole.” Federal regulations provide that a person detained under this subsection must receive a bail hearing. (d)(1), 1236.1(d)(1) (2018). With respect to release, however, subsection (a) adds the words “[e]xcept as provided in subsection (c).” 8 U.S. C. The subsection containing the exception to which (a) refers—namely, subsection (c)—is entitled “Detention of criminal aliens.” It consists of two paragraphs. Paragraph (1), entitled “Custody,” says that the Secre- tary “shall take into custody any alien who” is “inadmissi- ble” or “deportable” (by reason of having committed cer- tain offenses or having ties to terrorism) “when the alien is released,” presumably from local, state, or federal criminal (emphasis added). Because the rele- vant offenses are listed in four subparagraphs headed by the letters “A,” “B,” “C,” and “D,” I shall refer to the rele- vant aliens as “ABCD” aliens. Thus, for present purposes, paragraph (1) says that the Secretary “shall take into custody any” ABCD alien “when the alien is released” from criminal Paragraph (2), entitled “Release,” says that the Secre- tary “may release an alien described in paragraph (1) only if ” the alien falls within a special category—not relevant here—related to witness protection. (emphasis added). We held last Term in that paragraph (2) forbids a bail hearing for “an alien described in paragraph (1)” unless the witness protection exception applies. 583 U. S., at – (majority opinion) (slip op., at 20–22). Here we focus on the meaning of a key phrase in para- graph (2): “an alien described in paragraph (1).” This is the phrase that identifies the aliens to whom paragraph (2) (and its “no-bail-hearing” requirement) applies. Does 4 NIELSEN v. PREAP BREYER, J., dissenting paragraph (1) “describ[e]” all ABCD aliens, even those whom the Secretary has “take[n] into custody” many years after their release from prison? Or does it “describ[e]” only those aliens whom the Secretary has “take[n] into cus- tody when the alien [was] released” from prison? B The issue may sound technical. But it is extremely important. That is because the Government’s reading of the statute—namely, that paragraph (2) forbids bail hear- ings for all ABCD aliens regardless of whether they were detained “when released” from criminal custody— would significantly expand the Secretary’s authority to deny bail hearings. Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of re- lease; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of “moral turpitude” such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of re- moval. These are not mere hypotheticals. See Appendix B, infra. Thus, in terms of potential consequences and basic American legal traditions, see infra, at 11–12, the question before us is not a “narrow” one, ante, at 2 (KAVANAUGH, J., concurring). Why would Congress have granted the Secretary such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and Cite as: 586 U. S. (2019) 5 BREYER, J., dissenting common-law traditions? See at – (BREYER, J., dissenting) (slip op., at 8–10). The answer is that Congress did not do so. Ordinary tools of statutory interpretation demonstrate that the authority Congress granted to the Secretary is far more limited. II The statute’s language, its structure, and relevant canons of interpretation make clear that the Secretary cannot hold an alien without a bail hearing unless the alien is “take[n] into custody when the alien is re- leased” from criminal A Consider the statute’s language. Paragraph (1) of sub- section (c) provides that the Secretary “shall take into custody” any ABCD alien—that is, any alien who is “in- admissible” or “deportable” under the subparagraphs labeled “A,” “B,” “C,” and “D”—“when the alien is released” from, say, state or federal prison. Paragraph (2), meanwhile, generally forbids a bail hearing for “an alien described in paragraph (1).” The key phrase in paragraph (2) is “an alien described in paragraph (1).” As a matter of ordinary meaning and usage, the words “take into custody when the alien is released” in paragraph (1) form part of the description of the “alien”: An “alien described in paragraph (1)” is an ABCD alien whom the Secretary has “take[n] into cus- tody when the alien is released” from prison. The majority emphasizes a grammatical point—namely, that ordinarily only adjectives or adjectival phrases “modify” nouns. Ante, at 12. But the statute does not use the word “modify.” It uses the word “described.” While the word “describe” will in some contexts refer only to the words that directly “modify” a noun, normally it has a broader meaning. Compare American Heritage Dictionary 490 6 NIELSEN v. PREAP BREYER, J., dissenting (5th ed. 2011) (to “describe” is to “convey an idea or im- pression of ”) and Webster’s Third New International Dictionary 610 (to “describe” is to “convey an image or notion of ”) with P. The Cambridge Guide to English Usage 355 (2004) (defining a “modifie[r]” as a word that “qualifies” a noun). The common rules of grammar make the broad scope of the word “described” obvious. They demonstrate that a noun often is “described” by more than just the adjectives that modify it. Consider the following sentence: “The well- behaved child was taken by a generous couple to see Ham- ilton.” That sentence, written in the passive voice, de- scribes the “child” not only as “well-behaved” but also as someone “taken by a generous couple to see Hamilton.” The description of the child would not differ were we to write the sentence in the active voice: “The generous couple took the well-behaved child to see Hamilton.” The action taken by the “generous couple” (“took to see Hamilton”) still “describes” the “child,” even though these words do not “modify” the word “child.” That is because a person who has been subjected to an action can be de- scribed by that action no less than by an adjective. See (describing such a person as someone “affected by the action”); B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 452 (2016) (describing such a person as someone who “is acted on by or receives the action”); see also R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 1436 (2002) (noting the “large-scale overlap” between adjectives and certain verb forms). An example illustrates how these principles apply to the statute at issue here. Imagine the following cookbook recipe. Instruction (1) says: “(1) Remove the Angus steak from the grill when the steak is cooked to 120 degrees Fahrenheit.” Instruction (4) says: “(4) Let the steak de- scribed in Instruction (1) rest for ten minutes and then Cite as: 586 U. S. (2019) 7 BREYER, J., dissenting serve it.” What would we say of a chef who grilled an Angus steak to 185 degrees Fahrenheit, served it, and then appealed to these instructions—particularly the word “described” in Instruction (4)—as a justification? That he was not a good cook? That he had an odd sense of humor? Or simply that he did not understand the instructions? The chef would have no good textual defense: The steak “described in Instruction (1)” is not just an “Angus” steak, but an “Angus” steak that must be “remove[d] when the steak is cooked to 120 degrees Fahrenheit.” By the same logic, the alien in paragraph (1) is “described” not only by the four clauses—A, B, C, and D—that directly modify the word “alien,” but also by the verb (“shall take”) and that verb’s modifier (“when the alien is released”). The majority argues that “the crucial point” is that the phrase “when the alien is released” plays “no role in iden- tifying for the Secretary which aliens she must immediately arrest.” Ante, at 13. That may be so. But why is that a “crucial point” in the majority’s favor? After all, in the example above, the words “[r]emove from the grill when the steak is cooked to 120 degrees Fahrenheit” do not tell our chef what kind of steak to cook in the first place. (The word “Angus” does that.) Even so, those words still “describe” the steak that must be served in Instruction (4). Why? Because by the time our chef gets to Instruction (4), the recipe contemplates that the action in Instruction (1) has been completed. At that point, the “steak described in Instruction (1)” is a steak that has been cooked in the manner mandated by Instruction (1). The same is true of the two paragraphs before us. The key word “described” appears not in paragraph (1), but in paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the release provision, it contemplates that the action mandated by paragraph (1)—namely, detention—has already occurred. Thus, the function of the phrase “an alien described in 8 NIELSEN v. PREAP BREYER, J., dissenting paragraph (1)” is not to describe who must be detained, but instead to describe who must be denied bail. In short, the language demonstrates that an alien is “described in paragraph (1)”—and therefore subject to paragraph (2)’s bar on bail hearings—only if the alien is “take[n] into custody when the alien is released.” B The statute’s structure and context support this reading of the phrase “an alien described in paragraph (1).” First, “Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line.” NLRB v. SW General, Inc., 580 U. S. (2017) (slip op., at 9). Congress employed that structure “to make precise cross-references” throughout the immigration code. As relevant here, in a different detention provision enacted alongside the provision at issue here, Congress said that the Government “may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii).” Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–587. Yet Congress did not make such a precise cross-reference in paragraph (2): It did not refer to “an alien described in subparagraphs (A)–(D) of paragraph (1),” as it could have—and would have—done had it in- tended the majority’s narrow interpretation. Instead, it referred to aliens “described” in the entirety of paragraph (1). We usually “presume differences in language like this convey differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U. S. (2017) (slip op., at 6). The cross-reference to all of paragraph (1) reinforces that “an alien described in paragraph (1)” is not just an ABCD alien, but an ABCD alien whom (in the words of paragraph (1)) the Secretary “take[s] into custody when the alien is released” from criminal confinement. Cite as: 586 U. S. (2019) 9 BREYER, J., dissenting Second, consider the structural similarity between subsections (a) and (c). See Appendix A, infra. The first sentence of subsection (a) sets forth a detention rule: An “alien may be arrested and detained” pending a decision on the alien’s removal. 8 U.S. C. And the sec- ond sentence sets forth a release rule that allows for re- lease on bond and parole. Subsection (c) has a paral- lel structure. The first sentence (namely, paragraph (1)) says that the Secretary must “take into custody” a subset of those aliens “when the alien is released” from criminal And the second sentence (namely, paragraph (2)) sets forth the rule that “an alien described in paragraph (1)” generally may not be released. It is obvious that the second sentence of (a) applies only to those aliens who are detained following the rule in (a)’s first sentence. Parallel structure suggests that the same is true in (c): The second sentence of (c) applies only to those detained following the rule in (c)’s first sentence. Subsection (a)’s reference to (c) strengthens this structural inference: Subsection (a) says that its release rule applies “[e]xcept as provided in subsection (c)”—that is, except as provided in the whole of subsection (c), not simply para- graph (2) or the few lines the majority picks from (c)’s text. Thus, the release rule in each subsection (the second sentence) applies only if the Secretary complies with the detention rule in that subsection (the first sentence). In light of “the parallel structures of these provisions,” it would “flou[t] the text” to find that an alien is subject to (c)’s release rule, which forbids release, without also find- ing that the alien was detained in accordance with (c)’s detention rule, which requires the alien to be detained “when released.” Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 132 (1989). The majority responds that subsections (a) and (c) do not “establis[h] separate sources of arrest and release 10 NIELSEN v. PREAP BREYER, J., dissenting authority,” and that (c) is merely “a limit” on the authority granted by (a). Ante, at 15. But even if (c) were treated as a “limit” on the authority granted by (a), the parallel structure of the statute would still point to the same con- clusion: The Secretary must comply with the limit on detention in the first sentence of (c) in order to invoke the rule on release in the second sentence of (c). Third, Congress’ enactment of a special “transition” statute strengthens the point. When Congress enacted subsection (c), it recognized that there might be “insuffi- cient detention space” and “personnel” to carry out subsec- tion (c)’s requirements. IIRIRA, 110 Stat. 3009–586. It therefore authorized the Government to delay implementation of subsection (c)—initially for one year, then for a second year. If the majority were correct that the “when released” provision does not set a time limit on the Secretary’s authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Govern- ment simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-year transi- tion period? The majority responds that the transition statute still served a purpose: to “dela[y] the onset of the Secretary’s obligation to begin making arrests.” Ante, at 21. But that just raises the question: Why would Congress have needed to “dela[y] the onset of the Secretary’s obliga- tion” if it thought that the Secretary could detain aliens without a bail hearing after a year-long delay? The major- ity offers no good answer. The transition statute therefore strongly suggests that Congress viewed the “when released” provision as a constraint on the Secretary’s authority to deny a bail hearing. The transition statute also supports this conclusion in another respect: It demonstrates that Congress anticipated Cite as: 586 U. S. (2019) 11 BREYER, J., dissenting that subsection (c) would apply only to aliens “released” from state or federal prison. As noted, clauses A, B, C, and D in paragraph (1) cover some aliens who have never been in criminal Even the majority acknowledges that it would be bizarre if these aliens could be detained without a bail hearing. Ante, at 23. The transition statute confirms as much: It indicates that “the provisions of [subsection (c)] shall apply to individuals released after” the transition period concludes. IIRIRA, –586 (emphasis added). From this it follows that Congress saw paragraph (2) as forbid- ding bail hearings only for aliens who have been “re- leased.” That, however, can be true only if the “when released” provision limits the class of aliens subject to paragraph (2)’s “no-bail-hearing” requirement. The major- ity’s contrary reading, under which paragraph (2) applies “regardless of whether the alien was released from criminal custody,” ante, at 25, conflicts with how Congress itself described the scope of subsection (c) when it enacted the statute. C Even if statutory text and structure were not enough to resolve these cases, the Government’s reading would fail for another reason. A well-established canon of statutory interpretation provides that, “if fairly possible,” a statute must be construed “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United (1916). See Edward J. DeBartolo 575 (1988) (using word “serious” instead of “grave”). The Government’s reading of the statute, which the majority adopts, construes the statute in a way that creates serious constitutional problems. That reading would give the Secretary authority to arrest and detain aliens years after 12 NIELSEN v. PREAP BREYER, J., dissenting they have committed a minor crime and then hold them without a bail hearing for months or years. This possibil- ity is not simply theoretical. See Appendix B, infra. In I explained why I believe the practice of indefinite detention without a bail hearing likely deprives a “person” of his or her “liberty without due process of law.” U. S. Const., Amdt. 5. See 583 U. S., at (dissent- ing opinion) (slip op., at 5). This practice runs counter to “those settled usages and modes of proceeding existing in the common and statute law of England, before the emi- gration of ” the Founders’ “ancestors.” Murray’s Lessee v. Hoboken Land & Improvement Co., (1856). It runs counter to practices well established at the time of the American Revolution. at – (slip op., at 9–10). And it runs counter to common sense: Why would the law grant a bail hearing to a person accused of murder but deny it to a person who many years before committed a crime perhaps no greater than pos- sessing a stolen bus transfer? See Appendix B, infra. I explained much of the constitutional problem in my dissent in Rather than repeat what I wrote there, I refer the reader to that opinion. See at (slip op., at 1). I add only the obvious point that a bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community. The majority’s reading also creates other anomalies. As I have said, by permitting the Secretary to hold aliens without a bail hearing even if they were not detained “when released,” the majority’s reading would allow the Secretary to hold indefinitely without bail those who have never been to prison and who received only a fine or probation as 10–11. See, e.g., Cite as: 586 U. S. (2019) 13 BREYER, J., dissenting (A) (incorporating which covers controlled substance offenses for which the maximum penalty exceeds one year); Brief for Advancement Project et al. as Amici Curiae 19, 24, 29 (describing examples). That fact simply aggravates the constitutional problem. III Although the Court of Appeals correctly concluded that paragraph (2)’s prohibition on release applies only to an alien whom the Secretary “take[s] into custody when the alien is released” from criminal custody, it also held that the phrase “when the alien is released” means that the Secretary must grant a bail hearing to any alien who is not “ ‘immediately detained’ when released from crimi- nal ” (CA9 2016). I disagree with the Court of Appeals as to the meaning of the phrase “when the alien is released.” A As an initial matter, the phrase “when the alien is released” imposes an enforceable statutory deadline. I cannot agree with JUSTICE ALITO, who writes for a plurality of the Court on this point, that our cases holding certain statutory deadlines unenforceable are applicable here. Ante, at 17. See, e.g., v. Peabody Coal Co., 537 U.S. 149, 152 (2003) (holding that the Government’s untimeliness did not bar it from taking action beyond the statutory deadline); United (holding that a provision requiring a detention hearing to “ ‘be held immediately’ ” did not bar detention in the event of a late hearing); Brock v. Pierce County, (holding that the Government’s failure to observe a 120-day statutory deadline did not deprive it of authority under the statute). I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the 14 NIELSEN v. PREAP BREYER, J., dissenting Government must be enforced at least in contexts where “other part[s]” of the relevant statutes indicate that the time limit must be enforced, at 717; see also ; ; where the statute “ ‘specif[ies] a consequence for noncompliance’ ” with the time limit, (quoting United States v. James Daniel Real Property, (1993)); or where the harms caused by the Government’s delay are likely to be serious, see at 615– 616; –720. Here, the special transition statute Congress enacted alongside subsection (c) makes clear that Congress ex- pected that the mandate that an alien be detained “when released” would be enforceable. Congress nei- ther wished for nor expected the Secretary to detain aliens more than a year after their release from criminal IIRIRA, –586. Why else would Congress have enacted a statute permitting the Govern- ment, due to “insufficient detention space and Immigra- tion and Naturalization Service personnel,” to delay im- plementation of the entirety of subsection (c) for one year? As I have said, had Congress read the phrase “when the alien is released” as the plurality now reads it, the Government could have delayed implementation for as long as it liked without the need for any transition statute. The transition statute demonstrates that Congress viewed the phrase “when the alien is released” as imposing a deadline. Based on the transition statute, the Secretary may not delay detention under subsection (c) for longer than one year. Moreover, the statute does “ ‘specify a consequence’ ” for the Secretary’s failure to detain an alien “when the alien is released.” (quoting James Daniel at ). In that case, subsection (c) will not apply, and the Secretary must fall back on subsection (a), Cite as: 586 U. S. (2019) 15 BREYER, J., dissenting the default detention and release provision. Critically, subsection (a) does not guarantee release. Rather, it leaves much to the Government’s judgment: By regulation, aliens who are subject to subsection (a)’s default detention and release rules will simply receive a hearing at which they can attempt to demonstrate that, if released, they will not pose a risk of flight or a threat to the community. (d)(1), 1236.1(d)(1). Finally, I have already mentioned the many harms that could befall aliens whom the Secretary does not detain “when released.” They range from long periods of detention, to detention years or even decades after the alien’s release from criminal custody, to the risk of split- ting up families that are long established in a community. Thus, unlike some of our prior cases, the harm from a missed deadline hardly can be described as “insignificant.” The plurality objects that “Congress could not have meant for judges to ‘enforce’ ” the mandatory detention requirement “in case of delay by—of all things—forbidding its execution.” Ante, at 19. But treating the “when the alien is released” clause as an enforceable limit does not prohibit the Secretary from detaining the aliens that subsection (c) requires her to detain. Rather, the Secre- tary’s failure to comply with the “when the alien is re- leased” clause carries only one consequence: The Secretary cannot deny a bail hearing. B So what does the phrase “when the alien is released” mean? The word “when” can, but does not always, mean “[a]t the time that,” American Heritage Dictionary, at 1971, or “just after the moment that,” Webster’s Third New International Dictionary, at 2602. But the word only “[s]ometimes impl[ies] suddenness.” 20 Oxford English Dictionary 209 (2d ed. 1989). It often admits of at least 16 NIELSEN v. PREAP BREYER, J., dissenting some temporal delay. A child who is told to “mow the lawn, please, when you get home from school” likely does not have to mow the lawn the second she comes into the house. She can do a few other things first. Mindful of “the greater immigration-related expertise of the Executive Branch” and “the serious administrative needs and concerns inherent in the necessarily extensive [Government] efforts to enforce this complex statute,” I would interpret the word “when” in the same manner as we interpreted other parts of this statute in Zadvydas v. Davis, The words “when the alien is released” require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody—presumptively no more than six months. If the Secretary does not do so, she must grant a bail hearing. This presumptive 6-month limit is consistent with how long the Government can detain certain aliens while they are awaiting removal from the country. (interpreting a different provi- sion, To insist upon similar treatment in this context would give the Government sufficient time to detain aliens following their release from local, state, or federal criminal It would also ensure that the Government does not fall outside the 1-year maximum dictated by the transition statute. See 14. IV To reiterate: The question before us is not “narrow.” Ante, at 2 (KAVANAUGH, J., concurring). See That is because we cannot interpret the words of this specific statute without also considering basic promises that America’s legal system has long made to all persons. In deciphering the intent of the Congress that wrote this statute, we must decide—in the face of what is, at worst, linguistic ambiguity—whether Congress intended that persons who have long since paid their debt to society Cite as: 586 U. S. (2019) 17 BREYER, J., dissenting would be deprived of their liberty for months or years without the possibility of bail. We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law,” U. S. Const., Amdt. 5; the Nation’s original commitment to protect the “unalienable” right to “Liberty”; and, less abstractly and more directly, the longstanding right of virtually all per- sons to receive a bail hearing. I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress’ likely intent, an intent that is con- sistent with our basic values. To speak more technically, I believe that aliens are subject to paragraph (2)’s bar on release only if they are detained “when released” from criminal To speak less technically, I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood. For these reasons, with respect, I dissent. 18 NIELSEN v. PREAP AppendixBA J., to the REYER dissenting opinion of BREYER, J.